5 Arbitration Agreement: (Articles 5 and 6)

2020 ◽  
Author(s):  
Yu Jianlong ◽  
Cao Lijun
Keyword(s):  
Binding Effect ◽  
Arbitration Clause ◽  
The Common ◽  
Reporting Mechanism ◽  
Settlement Of Disputes ◽  
Article 5

This chapter discusses the important subject of arbitration agreement, covering Article 5 and Article 6 of the CIETAC Rules. Article 5.1 defines ‘arbitration agreement’ as ‘an arbitration clause in a contract or any other form of a written agreement concluded between the parties providing for the settlement of disputes by arbitration’. In practice, arbitration agreements may be established in one of the following three ways in China: contract clause; submission agreement; and incorporation by reference. The chapter then looks at the statutory requirements for a valid arbitration agreement; the common defects of arbitration agreements; the separability of arbitration agreements; and the binding effect of an arbitration agreement on non-signatory parties. Meanwhile, Article 6 sets forth provisions with regard to objection to arbitration agreement and/or arbitral jurisdiction. The chapter considers several aspects of the court’s procedure in deciding on objection to arbitration agreement, and the Reporting Mechanism of the PRC courts in regard to deciding on arbitration-related matters.

scholarly journals Nadużycie prawa podmiotowego w sprawach o ustanowienie rozdzielności majątkowej i ustalenie nierównych udziałów w majątku wspólnym

2020 ◽  
Vol 29 (5) ◽  
pp. 283
Author(s):  
Agnieszka Szczekala
Keyword(s):  
Common Property ◽  
Civil Code ◽  
Moral Justification ◽  
General Clause ◽  
Scope Of Application ◽  
Separate Property ◽  
The Common ◽  
Subjective Rights ◽  
Article 5

<p>The purpose of the study is to determine the scope of application of the construction of abuse of subjective rights in cases involving the establishment of a regime of separate property by the court and the determination of unequal shares in the common property. The prerequisite for both the establishment of the regime of separate property and the determination of unequal shares in the common property are “important reasons”. In order to determine the admissibility of the application of Article 5 of the Polish Civil Code it is therefore necessary to define the meaning of the terms “important reasons” and “rules of social coexistence”. It is assumed herein that general clauses are a kind of reference, in terms of the interpretation of provisions to generically defined norms and non-legal assessments, which have, in principle, an axiological moral justification and, consequently, that only evaluative phrases, as “rules of social coexistence” can be referred to using this term. “Important reasons”, on the other hand, are not an evaluative phrase but an estimative phrase and therefore not a general clause. It was also considered that it could not be ruled the assessment, under Article 5 of the Polish Civil Code, of the request for the regime of separate property to be established by the court or the request for the establishment of unequal shares in the common property, taking into account the extent to which each of the spouses contributed to its creation.</p>

scholarly journals Requirements for assuming a permanent establishment under Art. 5 OECD Model Tax Convention

2021 ◽  
Vol 1 (1) ◽  
pp. 111-125
Author(s):  
Mandy Witt
Keyword(s):  
Research Question ◽  
Common Law ◽  
Relevant Literature ◽  
Civil Law ◽  
German Law ◽  
Case Law ◽  
International Level ◽  
Permanent Establishment ◽  
The Common ◽  
Article 5

In January 2019, the German Federal Finance Court defined the legally binding requirements with respect to a fixed place of business being a matter of a permanent establishment according to German law, thus the revenue generated being subject to the German taxation.This article addresses the research question ‘Which criteria have to be met by a permanent establishment to be effective for tax purposes?’Regarding the methods, the article reviews relevant literature and case law to identify the prevailing and dissenting opinions on the requirements for assuming a fixed place of business under Art. 5(5) OECD-Model Tax Convention. As to the question whether one can refer to a fixed place of business as a permanent establishment, the courts use to differentiate between Civil Jurisdiction and Common Law. For the sake of clarity, the courts coined the article 5 of the OECD[1] Model Tax Convention. In accordance to the abovementioned Model Tax Convention, binding provisions were defined on the international level for both, countries using the Common Law as well as for those using the Civil Law, with respect to the requirements as to a permanent establishment and the resulting country of taxation to be applied. In doing so, the question arose whether for instance a lockbox would represent a permanent establishment or not.However, the contracting states did not succeed in determining clear requirements as to the existence of the establishment in question. In fact, they left it to the state in question to define their respective double-tax agreements according to their own needs.    

scholarly journals Arbitration of Corporate Law Disputes in Joint Stock Companies under Turkish Law: A Comparative Analysis

2019 ◽  
Vol 16 (6) ◽  
pp. 771-806
Author(s):  
Cem Veziroglu
Keyword(s):  
Comparative Analysis ◽  
Third Parties ◽  
Corporate Law ◽  
Step Test ◽  
Binding Effect ◽  
Arbitration Clause ◽  
Corporate Decisions ◽  
Legal Nature ◽  
Privately Held

This study addresses the arbitrability of corporate law disputes and the validity of arbitration clauses stipulated in the articles of association (AoA) of joint stock companies, and compares Turkish law with German and Swiss jurisdictions in particular. While corporate law disputes are considered arbitrable, disputes concerning invalidity of corporate decisions and actions for dissolution are heavily debated. The paper argues that both types of disputes are arbitrable, albeit judicial dissolution requests accommodate practical hurdles. It is also argued that arbitral awards should be granted the erga omnes effect, as long as the interested third parties are provided with the necessary procedural protection. Furthermore, arbitration clauses can be validly stipulated in the AoA of privately held joint stock companies. However, the binding effect of the arbitration clause in question depends on its legal nature, namely, korporative or formell. Addressing this issue, the paper proposes to adopt a two-step test. Finally, it suggests practicable legislative recommendations and a model arbitration clause in order to enable and facilitate arbitration in corporate law disputes.

scholarly journals Arbitration agreements in the foreign economic activity of russian companies

2020 ◽  
Vol 6 (Extra-B) ◽  
pp. 175-179
Author(s):  
Yuri Mikhailovich Lukin ◽  
Arthur Robertovich Vasiliev ◽  
Rafail Valievich Shakiryanov
Keyword(s):  
Economic Activity ◽  
Research Method ◽  
Commercial Arbitration ◽  
Judicial Practice ◽  
Arbitration Clause ◽  
Legal Method ◽  
Recognition And Enforcement ◽  
Potential Risks ◽  
The Russian Federation ◽  
The Common

The article assesses the potential risks associated with the problem of recognizing the arbitration clause as inconsistent or invalid. The main scientific research method used in this article is the comparative legal method, which makes it possible to most accurately determine the common and different features in the approaches of different jurisdictions. This article discusses the main conditions and essential circumstances requiring attention when working with contracts in the foreign economic activity in terms of validity of the arbitration agreements. In order to achieve the goal set in the article, we analyzed: the legislation of the Russian Federation on international commercial arbitration, the UNISTRAL rules, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), the international arbitration rules, the judicial practice related to the recognition and enforcement of arbitral awards. As a result of analysis, the article provides provisions aimed at increasing the efficiency of conclusion of such arbitration clauses in the foreign economic activity of Russian companies.    

scholarly journals Good Offies, Conciliation, and Mediation in the WTO: Challenges and Perspectives

2018 ◽  
pp. 97-102
Keyword(s):  
Dispute Settlement ◽  
Developed Countries ◽  
Third Party ◽  
Least Developed Countries ◽  
Dispute Settlement Mechanism ◽  
Wto Dispute Settlement ◽  
History Of ◽  
Settlement Of Disputes ◽  
United Nations Charter ◽  
Article 5

Article 5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes lists means of pacifi settlement of disputes that can be used alongside with settlement of a particular dispute or instead of it. Good offies, conciliation and mediation are an adherence of WTO dispute settlement mechanism to the principle of pacifi settlement of disputes in international law enshrined in United Nations Charter and reminder of diplomatic approach that was dominating in the previous GATT system. Nowadays, non-litigious ways of dispute settlement in WTO have a potential to be on rise, due to crisis situation caused by US in Appellate Body and Dispute Settlement Body in general. This article looks into the reasons why means enshrined in the Article 5 were not used by Member states frequently enough since their establishment of the WTO. It looks closely into defiitions and history of the Article 5. The authors come to a conclusion that mediation has a potential and perspectives to be used more frequently in the future of the WTO dispute settlement. Mediation is treated as a unique mechanism that can be used by developing and least-developed countries to receive third-party assistance and mitigate power imbalances. Factors for successful mediation are deducted from the case analysis and interviews with representatives of permanent missions.

scholarly journals Arbitration agreements in the foreign economic activity of russian companies

2020 ◽  
Vol 6 (Extra-B) ◽  
pp. 175-179
Author(s):  
Yuri Mikhailovich Lukin ◽  
Arthur Robertovich Vasiliev ◽  
Rafail Valievich Shakiryanov
Keyword(s):  
Economic Activity ◽  
Research Method ◽  
Commercial Arbitration ◽  
Judicial Practice ◽  
Arbitration Clause ◽  
Legal Method ◽  
Recognition And Enforcement ◽  
Potential Risks ◽  
The Russian Federation ◽  
The Common

The article assesses the potential risks associated with the problem of recognizing the arbitration clause as inconsistent or invalid. The main scientific research method used in this article is the comparative legal method, which makes it possible to most accurately determine the common and different features in the approaches of different jurisdictions. This article discusses the main conditions and essential circumstances requiring attention when working with contracts in the foreign economic activity in terms of validity of the arbitration agreements. In order to achieve the goal set in the article, we analyzed: the legislation of the Russian Federation on international commercial arbitration, the UNISTRAL rules, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), the international arbitration rules, the judicial practice related to the recognition and enforcement of arbitral awards. As a result of analysis, the article provides provisions aimed at increasing the efficiency of conclusion of such arbitration clauses in the foreign economic activity of Russian companies.    

Political Arbitration under the General Act for the Pacific Settlement of International Disputes

1933 ◽  
Vol 27 (3) ◽  
pp. 469-490 ◽  
Author(s):  
Miroslas Gonsiorowski
Keyword(s):  
Great Influence ◽  
Hague Convention ◽  
Great Powers ◽  
Political Conflicts ◽  
The Pacific ◽  
The Common ◽  
The Hague Convention ◽  
Settlement Of Disputes ◽  
Final Settlement ◽  
First Time

The General Act for the Pacific Settlement of International Disputes, signed at Geneva, September 26, 1928, is intended to provide for the final settlement of every dispute, of whatever nature it may be. Chapter II is evoted to legal disputes, while Chapter III, Articles 21-28, lays down rules concerning the settlement of non-legal disputes. This idea of a recourse to arbitration for the settlement of purely political conflicts, which Chapter III puts forward, may appear to be inconsistent with a long evolution which has tended to emphasize the judicial character of arbitration. It is true that occasionally states have submitted such conflicts to an arbitral tribunal, but it is for the first time that a provision to this effect has been inserted in a multipartitetreaty. A treaty of this kind has a legislative character and exercises a great influence upon the development of international law. The importance of the General Act is all the greater since some twenty states, including three great Powers, have already ratified it. This treaty, which may be compared only to the Hague Convention,could largely contribute to a revision of the common conception of arbitration. Does it attempt to do so, or is it rather intended to leave this conception unchanged and to create a new method of pacific settlement? In either case, how should the new conception of arbitration be defined? Since purely political disputes cannot be settled by the application of a rule of law, are the powers of the tribunal unlimited? These questions deserve closer consideration, especially since the relevant provisions of Chapter III of the General Act have already inspired certain opinions which, it is believed, are not only contrary to the true meaning of this treaty, but also,if generally adopted, would destroy the very foundations of international arbitration. Now, one of the essential ideas underlying the General Act is not to impair in the least what has already proved useful, but to develop the existing means for the pacific settlement of disputes. Chapter III constitutes an important step forward. Its evolutionary character and its exact meaning can best be realized in the light of the practice of statesand of the jurisprudence of arbitral tribunals.

ARBITRATION JUDICIARY – NEW QUALITY OF DISPUTE RESOLUTION

2021 ◽  
Vol specjalny (XXI) ◽  
pp. 623-638
Author(s):  
Tomasz Kałużny
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Alternative Methods ◽  
Arbitration Clause ◽  
Administration Of Justice ◽  
Important Addition ◽  
Legitimate Expectations ◽  
The Common ◽  
Mutual Relations

Arbitration judiciary, often referred to as arbitration, is commonly presented in the literature as one of the alternative methods of dispute resolution. The objections to the irregularities of the judicial state system and legitimate expectations in terms of reducing the time and costs of the proceedings guarantee the parties real access to court and protection of their rights by drawing up an arbitration clause. As part of the mutual relations of arbitration with respect to alternative dispute resolution methods, it should be emphasized that arbitration is a real alternative to the state justice administered by the common courts. It is also worth pointing to the possibilities and the need for disputes resolution by arbitration constituting as an important addition to the course of justice made by courts. The consistent intention to resolve the conflict reflected in the arbitration agreement and the exceptional opportunities for the parties to participate in the arbitration proceedings constitute a new content of the culture and legal awareness of citizens and the creation of modern mutual relations between the parties of broadly understood civil law relations. An arbitration clause, the implementation of arbitration proceedings and the resolution of a dispute within the framework of arbitration may and should therefore constitute a new quality in the administration of justice.

Settlement of Disputes by Arbitration in Fifteenth-Century England

1984 ◽  
Vol 2 (1) ◽  
pp. 21-43 ◽  
Author(s):  
Edward Powell
Keyword(s):  
Fifteenth Century ◽  
Dispute Resolution ◽  
Dispute Settlement ◽  
Common Law ◽  
Legal Institutions ◽  
Central Task ◽  
History Of ◽  
The Common ◽  
Settlement Of Disputes ◽  
Precocious Development

The history of arbitration procedures and extra-judicial forms of dispute settlement in medieval England remains largely unwritten. This neglect is no doubt attributable to the precocious development of the common law, which has monopolized the attention of English legal historians and left them little time to consider alternative forms of dispute resolution. Their main preoccupation, epitomized in the work of great scholars such as Maitland, Holdsworth and Plucknett, has been to trace the evolution of legal institutions, procedures and doctrine. Consideration of arbitration has at best been regarded as peripheral to this central task.

Restrictive covenants, use of land, and the restraint of trade doctrine

2021 ◽  
Vol 72 (1) ◽  
pp. 132-140
Author(s):  
David Capper
Keyword(s):  
Northern Ireland ◽  
Common Law ◽  
Commercial Activity ◽  
Restrictive Covenants ◽  
House Of Lords ◽  
The Supreme Court ◽  
The Common ◽  
Article 5 ◽  
Court Of Appeal ◽  
Restraint Of Trade

The common law doctrine of restraint of trade has a well-established presence in relation to contracts of employment and contracts for the sale of a business. Beyond those specific areas it reared its head from time to time, but the legal test for its applicability was not a model of clarity. Where the covenantor ceded a pre-existing freedom to engage in commercial activity, the decision of the House of Lords in Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269 brought it within the doctrine, but the recent decision of the Supreme Court in Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd [2020] UKSC 36, on appeal from the Northern Ireland Court of Appeal [2018] NICA 7, has discarded that test in favour of one based on the structure of a trading society. Peninsula Securities was a case concerned with the applicability of the restraint of trade doctrine to covenants affecting the ability of a landowner and its successors in title to use the land in a way that potentially competed with the business of an adjoining occupier. The decision that the restraint of trade doctrine was not engaged in these circumstances was set against the power of the Lands Tribunal to modify or extinguish covenants affecting land under article 5 of the Property (NI) Order 1978.  

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