Part 1 Fundaments of Arbitration in Brazil, 2 Comments of the Brazilian Arbitration Law

2020 ◽  
Author(s):  
Sester Peter
Keyword(s):  
New York ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention ◽  
Definition Of

This chapter examines the Brazilian Arbitration Law (BAL) of 1996. The BAL is a standalone act encompassing roughly 40 articles. It is divided into eight chapters and is applicable to both domestic and international arbitration, except for Chapter VI (The Recognition and Enforcement of Foreign Awards), which is modelled on the New York Convention (NYC). Hence, the BAL legislator adopted a monistic approach. Consequently, the BAL contains no definition of domestic or international arbitration, but only defines the term foreign award. According to article 34, sole paragraph BAL, an award is considered a foreign award if it was rendered outside the territory of Brazil. The present translation of the BAL builds on the terminology of the UNCITRAL Model Law on Commercial Arbitration and the NYC because both documents inspired the authors of the BAL and are cornerstones of international arbitration. This chapter of the book then provides comments on the BAL article by article.

Understanding Public Policy as an Exception to the Enforcement of Foreign Arbitral Awards

2015 ◽  
Vol 2 (4) ◽  
pp. 316-350
Author(s):  
Wasiq Abass Dar
Keyword(s):  
Public Policy ◽  
New York ◽  
Special Focus ◽  
Commercial Arbitration ◽  
National Courts ◽  
Or Practice ◽  
Wide Definition ◽  
Model Law ◽  
New York Convention ◽  
Definition Of

The paper, as the title suggests, aims at understanding and exploring the doctrine of public policy as a ground for refusing enforcement of foreign arbitral awards. Public Policy is one such ground provided in the New York Convention as well as in the uncitral Model Law, which is most often invoked in the national courts to challenge or refuse the enforcement of foreign arbitral awards. What makes it more complicated is the lack of common world-wide definition of public policy or practice on its application, as the same varies from State to State. The traces of ambiguity, subjectivity (at the hands of the courts in terms of interpretation of the concept), and unpredictability associated with the concept of public policy have at times significantly thwarted the effectiveness and efficiency of international commercial arbitration. This paper attempts to understand and explore the enigma of public policy as an exception to the enforcement of foreign arbitral awards. Apart from revisiting various scholarly works on this issue, interpretation of this concept by various judicial institutions across the globe (with special focus on India, Pakistan, Bangladesh and Sri Lanka) has been attempted, followed by a comparative analysis, to analyse its application on the ground. This paper argues and suggests that a more desirable method of interpreting public policy, i.e. narrow interpretation, is the need of the hour, keeping in consideration the growing demands of international trade and commerce.

Practitioner's Handbook on International Commercial Arbitration

2019 ◽  
Keyword(s):  
New York ◽  
International Criminal ◽  
Case Law ◽  
Criminal Court ◽  
International Arbitration ◽  
General Introduction ◽  
Comprehensive Overview ◽  
Commercial Arbitration ◽  
Model Law ◽  
New York Convention

This book provides reports on the arbitration systems and laws of thirteen countries in addition to commentaries on the arbitration rules of the International Criminal Court (ICC), the International Centre for Dispute Resolution (ICDR), the London Court of International Arbitration (LCIA), and UNCITRAL Arbitration Rules as well as on the UNCITRAL Model Law and the New York Convention. This comprehensive overview of the key arbitral jurisdictions and the most important arbitral rules and conventions makes it a unique and indispensable work that belongs on the desk of each practitioner. The book combines a practical approach with in-depth legal research and analyses of important national and international case law. This new edition is written to meet the needs of both the non-specialist lawyer requiring quick and useful information on a particular legal system or set of rules or who is interested in a concise general introduction into the law of international arbitration, and the experienced arbitration practitioner looking for well-founded information on a particular issue.

scholarly journals International Commercial Arbitration in Malaysia

2021 ◽  
Vol 29 (S2) ◽  
Author(s):  
Iyllyana Che Rosli
Keyword(s):  
New York ◽  
Best Practice ◽  
International Treaties ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Cross Border ◽  
Before And After ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention

In the recent two decades, the wave of globalisation has hit the Malaysian market. It hence contributes to the popularity of arbitration as the means to settle cross border commercial disputes. The existing literature concerned with Malaysia suggests that the recent trend in Malaysia is that arbitration has become the dominant choice of dispute resolution forum. Using qualitative and doctrinal methods, this paper seeks to analyse the regulatory framework for international commercial arbitration in Malaysia, before and after Malaysia’s accession to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (hereinafter, NYC 1958). The NYC 1958 is one of the most successful international treaties with 161 contracting States. The NYC 1958 aims to promote uniform practical procedures for the recognition and enforcement of foreign arbitral awards in its contracting States, irrespective seat of the awards. In doing so, the paper examines two significant periods of arbitration laws in Malaysia: pre and post-accession to the NYC 1958. The paper concludes that Malaysia no longer follows English arbitration legislation and instead follows international best practice by adopting the UNCITRAL Model Law on International Commercial Arbitration (hereinafter, UML) as the basis of its modern legislation, the Arbitration Act 2005. Malaysian courts are also seen to adopt a positive ‘pro-enforcement’ attitude in the application to recognise and enforce foreign arbitral awards, in promoting maximum enforcement of awards as promoted by the NYC 1958 and the UML.

Part III International Arbitration Agreements: Issues and Perspectives, 6 Some Reflections on the Making of International Arbitration Agreements for the Resolution of Commercial Disputes

2016 ◽  
Author(s):  
Saville Lord
Keyword(s):  
New York ◽  
Dispute Resolution ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Dispute ◽  
Model Law ◽  
New York Convention ◽  
Legal Procedures ◽  
Commercial Disputes

This chapter presents some thoughts on international arbitration. It begins with brief descriptions of the New York Convention and the UNCITRAL Model Law, which serve as the foundations of international dispute resolution. It then discusses arbitration agreements, the role of institutions, the role of law, and the disadvantages of arbitration. It argues that international commercial arbitration has become much more like that of the London Commercial Court; more often than not lawyers are called in from the outset. Pleadings, discovery, and the like are commonplace. The arbitral process has also become more expensive, notwithstanding substantial efforts by arbitral institutions and others to limit costs. It further suggests that where the tribunal considers that the dispute can be dealt with fairly and more cheaply without the full panoply of such legal procedures as the parties’ lawyers propose, that they make certain that the parties themselves, not just their lawyers, are made aware of the tribunal’s view.

scholarly journals Review of arbitral awards for breach of natural justice: an internationalist approach

2021 ◽  
Author(s):  
◽  
Daniel Brady
Keyword(s):  
New York ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Commercial Arbitration ◽  
Natural Justice ◽  
National Courts ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention ◽  
Dispute Resolution Mechanism

<p>While international commercial arbitration is widely regarded as an alternative dispute resolution mechanism to litigation in national courts, those courts are frequently engaged in the review arbitral awards in the context of annulment as well as recognition and enforcement. A key purpose of this review is to ensure that the arbitral procedure is consistent with the fundamental principles of natural justice. These principles find their origin in the general principles of law common to civilised nations, and their application is mandated by both the New York Convention and the UNCITRAL Model Law. This paper argues that the content of these principles should be ‘internationalised’. That is, it is both appropriate and desirable that domestic courts, irrespective of the jurisdiction in which they happen to be sitting, apply the basic rules of natural justice in uniform way. It is submitted that this would not only result in a consistent and therefore reliable recognition and enforcement regime, but would also contribute to the success and increased adoption of international arbitration as a key alternative dispute resolution mechanism.</p>

Part III Where to Arbitrate? Distinctive Features of Maritime Arbitral Seats, 12 Common Types of Shipping Arbitration: In Singapore and London

2016 ◽  
Author(s):  
Chan Leng Sun
Keyword(s):  
New York ◽  
International Arbitration ◽  
Distinctive Features ◽  
Institutional Rules ◽  
Institutional Services ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention

This chapter reflects on developments in maritime arbitration in Singapore, highlighting its distinctive features via a comparison with London, the shipping world’s preferred arbitration centre. In Singapore, the Arbitration Act (Cap 10, 2002 Rev Ed) governs domestic arbitration whereas the International Arbitration Act (Cap 143A, 2002 Rev Ed) (the ‘IAA’) governs international arbitration. The IAA gives the force of law to the UNCITRAL Model Law 1985 and the New York Convention on the Reciprocal Recognition and Enforcement of Foreign Arbitral Awards. Singapore offers the possibility to arbitrate under the institutional rules of either the Singapore Chamber of Maritime Arbitration (SCMA) or the Singapore International Arbitration Centre (SIAC). The SIAC provides institutional services, including the appointment of arbitrators. The SCMA was in recent years taken outside the structure of the SIAC to provide a service more comparable to that provided by the London Maritime Arbitrators Association (LMAA).

11 Mexico City

2014 ◽  
Author(s):  
Wobeser Claus von
Keyword(s):  
New York ◽  
Legal Framework ◽  
International Arbitration ◽  
Trade Law ◽  
International Trade Law ◽  
Primary Means ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention ◽  
Judicial Assistance

This chapter evaluates the merits of Mexico as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Mexico; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that Mexico is an attractive venue to conduct arbitration because of its complete and exhaustive legal framework, coupled with the availability of effective judicial assistance. Mexican law is modern and supportive of arbitration. The numerous free trade agreements and bilateral investment treaties (BITs) entered into by Mexico establish international arbitration as the primary means of resolving disputes. The adoption of the United Nations Commission on International Trade Law (UNCITRAL) Model Law and ratification of the New York Convention had also made the judicial approach towards the recognition and enforcement of arbitral awards favorable.

scholarly journals Review of arbitral awards for breach of natural justice: an internationalist approach

2021 ◽  
Author(s):  
◽  
Daniel Brady
Keyword(s):  
New York ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Commercial Arbitration ◽  
Natural Justice ◽  
National Courts ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention ◽  
Dispute Resolution Mechanism

<p>While international commercial arbitration is widely regarded as an alternative dispute resolution mechanism to litigation in national courts, those courts are frequently engaged in the review arbitral awards in the context of annulment as well as recognition and enforcement. A key purpose of this review is to ensure that the arbitral procedure is consistent with the fundamental principles of natural justice. These principles find their origin in the general principles of law common to civilised nations, and their application is mandated by both the New York Convention and the UNCITRAL Model Law. This paper argues that the content of these principles should be ‘internationalised’. That is, it is both appropriate and desirable that domestic courts, irrespective of the jurisdiction in which they happen to be sitting, apply the basic rules of natural justice in uniform way. It is submitted that this would not only result in a consistent and therefore reliable recognition and enforcement regime, but would also contribute to the success and increased adoption of international arbitration as a key alternative dispute resolution mechanism.</p>

scholarly journals Dallah: the death knell for deference?

2021 ◽  
Author(s):  
◽  
Anastasia Lee Fraser
Keyword(s):  
New York ◽  
United Kingdom ◽  
Supreme Court ◽  
De Novo ◽  
Commercial Arbitration ◽  
English Court ◽  
Arbitral Award ◽  
The United Kingdom ◽  
Recognition And Enforcement ◽  
New York Convention

<p>This paper examines the decision of the United Kingdom Supreme Court in Dallah Real Estate and Tourism Holding Company v The Minister of Religious Affairs, Government of Pakistan, a rare case where an English court refused enforcement of an international arbitral award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).  Although in Dallah the United Kingdom Supreme Court acknowledged the trend to limit reconsideration of the findings of arbitral tribunals in fact and in law, the Court considered it was bound to decide the question of validity de novo. Contrary to the tribunal, the Court held the arbitration agreement was not valid under the law to which it was subject and refused enforcement of the arbitral award.  This paper analyses how the English Supreme Court decided the legal issues before it. It concludes the English court could have reached the same decision on a more convincing basis. Even where the issue is initial consent, holding the court at the place of enforcement is always bound to decide a matter de novo neither serves the objectives of international commercial arbitration nor is necessary to promote the fundamental integrity of arbitral proceedings.</p>

scholarly journals The Singapore Convention on Mediation—A Brighter Future for Asian Dispute Resolution

2019 ◽  
Vol 9 (2) ◽  
pp. 195-205 ◽  
Author(s):  
Eunice CHUA
Keyword(s):  
New York ◽  
Dispute Resolution ◽  
Critical Analysis ◽  
Trade Law ◽  
International Trade Law ◽  
Settlement Agreements ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention ◽  
Brighter Future

AbstractOn 26 June 2018, the United Nations Commission on International Trade Law [UNCITRAL] approved, largely without modification, the final drafts of the Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention) and amendments to the Model Law on International Commercial Mediation prepared by Working Group II. These instruments aim to promote the enforceability of international commercial settlement agreements reached through mediation in the same way that the New York Convention facilitates the recognition and enforcement of international arbitration awards. This paper provides a critical analysis of the Singapore Convention, and some commentary from an Asian perspective.

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