The International Rule of Law in Latin American Investment Arbitration: UNASUR’s Advances in Arbitrator Appointment and Disqualification

2016 ◽  
Vol 17 (4) ◽  
pp. 681-699 ◽  
Author(s):  
José Manuel Álvarez Zárate ◽  
Rebecca Pendleton
Keyword(s):  
Dispute Resolution ◽  
Latin American ◽  
Rule Of Law ◽  
Alternative Dispute Resolution ◽  
South American ◽  
Investment Arbitration ◽  
The Creation ◽  
Democratic Principles ◽  
Dispute Resolution Mechanism ◽  
International Rule

In 2008, Ecuador raised the need for the creation of an alternative dispute resolution mechanism within the Union of South American Nations (UNASUR). Any system of investment arbitration should comply with democratic principles and the international rule of law which provide predictability, transparency and legitimacy for arbitral decisions and thus should avoid political and economic bias. This article shows Latin America’s historical inclination towards arbitration and focuses on the 2014 UNASUR Project’s proposed method of appointment and disqualification of arbitrators, and its approach to the execution of awards. By way of comparison with International Centre for Settlement of Investment Disputes (ICSID) tribunals, the article goes on to suggest how an application of the international rule of law could help guide and structure arbitrators’ behaviours in the proposed UNASUR Project as well as under the current ICSID framework to avoid arbitrators’ deviation from the law and prevent their creative, independent interpretations.

scholarly journals ODREĐIVANJE VISINE NAKNADE ŠTETE U MEĐUNARODNOJ INVESTICIJSKOJ ARBITRAŽI S OBZIROM NA UTVRĐENU POVREDU I METODU IZRAČUNA

2021 ◽  
Vol 37 (2) ◽  
pp. 105-136
Author(s):  
Jadranka Osrečak
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Case Law ◽  
International Investment ◽  
Legal Issues ◽  
Investment Arbitration ◽  
Inclusive Approach ◽  
Arbitration Proceeding ◽  
Dispute Resolution Mechanism

International investment arbitration as an alternative dispute resolution mechanism for resolving disputes between foreign investors and host states is also a favourite dispute resolution for investors. It consist of three parts, all of which can be resolved separately. These are jurisdiction, merits and damages. Consequently, it is possible for a tribunal to render one, two or even three arbitral awards, depending on the tribunal decision to bifurcate/trifurcate the proceedings or not. This shows the complexity of each of the stages of the arbitration proceeding. The paper deals with the issue of reparation, specifically compensation for damage caused as the main form of reparation for damage. It gives an overview of the legal issues affecting the amount of awarded damages, the main methods for calculating damages, as well as the applicable case-law and statistics in relation to the legal issues and calculating methods. The paper argues that only a proactive and inclusive approach in respect to determining damages including a detailed fact analysis for legal qualification of the dispute and determination of the best damages assessment methods, can give satisfactory results.

Palestinian Ṣulḥa and the Rule of Law

2013 ◽  
Vol 27 (2) ◽  
pp. 151-170
Author(s):  
Brian A. Kritz
Keyword(s):  
Dispute Resolution ◽  
Rule Of Law ◽  
Alternative Dispute Resolution ◽  
The Rule Of Law ◽  
Legal Assessment ◽  
Resolution Process ◽  
Dispute Resolution Process ◽  
International Rule

Abstract Palestine’s alternative dispute resolution process, the ṣulḥa system, is utilized in the vast majority of civil and criminal disputes. Despite the popularity of the ṣulḥa process, there exists, to date, no international legal assessment of such proceedings. This article assesses Palestinian ṣulḥa’s adherence to international rule of law standards. Using rule of law theory to assess the fairness, equity, and accessibility of the ṣulḥa system, this article determines that Palestinian ṣulḥa proceedings satisfy the major requirements of international rule of law standards.

Systems of Legal Defence Used by Latin American Countries in Investment Disputes

2016 ◽  
Vol 17 (4) ◽  
pp. 562-593 ◽  
Author(s):  
Rodrigo Polanco Lazo
Keyword(s):  
Costa Rica ◽  
Dispute Resolution ◽  
Latin American ◽  
Alternative Dispute Resolution ◽  
Large Majority ◽  
Investment Arbitration ◽  
Preventive Approach ◽  
Mixed Approach ◽  
Latin American Countries

This article describes the main features of the systems of legal defence that Latin American countries have been using when facing investment arbitration. It focuses on Argentina, Venezuela, Ecuador, Mexico, Peru, Bolivia, and Costa Rica, as a group of countries representative of the region and examines their strategies of internalisation or externalisation of the State’s legal defence and briefly addresses whether a policy to prevent investment disputes is in place. The article concludes that there is no uniform strategy of Latin American countries for the legal defence of investment disputes, but the large majority of States follow a mixed approach employing in-house lawyers and external counsel. With respect to the prevention of investment disputes, only some countries in the region have considered a preventive approach, or foster the use of alternative dispute resolution (ADR).

Rule of Law in India

2018 ◽  
Author(s):  
Harish Narasappa
Keyword(s):  
Human Rights ◽  
Dispute Resolution ◽  
Rule Of Law ◽  
Theory And Practice ◽  
The Rule Of Law ◽  
Social Challenges ◽  
Application Of Law ◽  
Primary Element ◽  
The Status ◽  
Dispute Resolution Mechanism

Rule of law is the foundation of modern democracies. It envisages, inter alia, participatory lawmaking, just and certain laws, a bouquet of human rights, certainty and equality in the application of law, accountability to law, an impartial and non-arbitrary government, and an accessible and fair dispute resolution mechanism. This work’s primary goal is to understand and explain the obvious dichotomy that exists between theory and practice in India’s rule of law structure. The book discusses the contours of the rule of law in India, the values and aspirations in its evolution, and its meaning as understood by the various institutions, identifying reason as the primary element in the rule of law mechanism. It later examines the institutional, political, and social challenges to the concepts of equality and certainty, through which it evaluates the status of the rule of law in India.

Assessing the efficacy of forum selection agreements in Commonwealth Africa

2020 ◽  
Vol 7 (2) ◽  
pp. 1-40
Author(s):  
Theophilus Edwin Coleman
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Arbitral Tribunal ◽  
African Countries ◽  
The Subject ◽  
Dispute Resolution Mechanism ◽  
Domestic Support ◽  
Commercial Disputes

Any international commercial agreement has the potential to be the subject of a dispute. In resolving international commercial disputes, parties to a contract are at liberty to choose any dispute resolution mechanism that best serves and meets their commercial interests. Generally, parties to an international commercial contract may resort to courtroom litigation or choose an alternative dispute resolution (ADR) mechanism as a method of resolving their transnational disputes. Underlying almost every international commercial contract, therefore, is a very primary question about where, by whom and how the parties prefer their disputes to be litigated. The response to this question depends on whether parties prefer traditional courtroom litigation, or an ADR mechanism. In most instances, countries put in place dispute resolution regimes that seek to afford contracting parties the liberty to submit their disputes to a foreign forum or an arbitral tribunal for legal redress and/or a remedy. However, while the efficacy of resolving international disputes through arbitration has garnered immense international and domestic support, the submission of disputes by parties to a foreign forum through a forum selection agreement is regarded with much ambivalence in most countries. This article assesses the efficacy of forum selection agreements in Commonwealth Africa. It appraises the judicial approach of courts in Commonwealth African countries relative to the essence and effect of forum selection agreements. This article argues and calls for a higher degree of judicial commitment to the juridical choices of private individuals who are party to an international commercial contract, especially with regard to forum selection agreements.

International Arbitration as Private and Public Good

2020 ◽  
pp. 397-420
Author(s):  
Ralf Michaels
Keyword(s):  
Public Good ◽  
Dispute Resolution ◽  
Public Law ◽  
State Courts ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Investment Arbitration ◽  
Public Nature ◽  
Private And Public ◽  
Dispute Resolution Mechanism

This chapter addresses the private and public nature of international arbitration. International arbitration is often characterized as an exclusively private dispute resolution mechanism, sharply distinguished from litigation, which is viewed as public because it is provided by the state. This is clearest for commercial arbitration. Commercial arbitration is initiated on the basis of a private arrangement: a party cannot be subjected to arbitration unless they agreed to it previously. Investment arbitration is a little more difficult to categorize, given its emergence from public international law, its involvement of states as parties, and the frequency with which it deals with public law measures. Indeed, significant differences exist between commercial and investment arbitration. Nevertheless, it too is characterized as a private dispute resolution mechanism at least in the sense that it is resolved by institutions other than state courts. The chapter then evaluates whether arbitration is a private or public good. It also demonstrates the ways in which adjudication by courts combines elements of private and public goods, before finding a parallel combination of private and public good aspects in international arbitration.

From alternative dispute resolution to pluralist dispute resolution: towards an integrated dispute-resolution mechanism in China

2020 ◽  
Vol 16 (2) ◽  
pp. 165-180
Author(s):  
Zhiqiong June Wang ◽  
Jianfu Chen
Keyword(s):  
Social Control ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Careful Examination ◽  
National Strategy ◽  
Resolution System ◽  
Future Direction ◽  
Dispute Resolution Mechanism ◽  
Dispute Resolution System

AbstractSince 1978, we have observed the steady development of institutions, mechanisms and processes of dispute resolution in China. In the last ten years or so, we then noted frequent issuance of new rules and measures as well as revision of existing laws, the promotion of mediation as the preferred method for resolving disputes and, more recently, the promotion of an integrated dispute-resolution system as a national strategy for comprehensive social control (as well as for resolving disputes), in the name of reforming and strengthening ‘the Mechanism for Pluralist Dispute Resolution’. Careful examination of these latest developments suggests that fundamental changes are taking place that may potentially alter the course of the development of the Chinese dispute-resolution system. These developments are the focus of this paper with an aim to ascertain the nature of the developments and their future direction or directions.

scholarly journals Alternative Dispute Resolution Mechanisms in Colombia and Russia: Conciliation and Mediation

Justicia ◽  
2021 ◽  
Vol 26 (40) ◽  
pp. 128-142
Author(s):  
Milton Arrieta López ◽  
Abel Meza Godoy ◽  
Ilya Vladimirovich Afanasiev ◽  
Vladimir Dmitriyevich Sekerin ◽  
Sara Noli
Keyword(s):  
Qualitative Research ◽  
Conflict Resolution ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Initial Phase ◽  
Access To Justice ◽  
Human Right ◽  
Russian Constitution ◽  
Dispute Resolution Mechanism

In this article, the authors compare alternative conflict resolution mechanisms in Colombia and Russia. In the former, conciliation is the most developed alternative dispute resolution mechanism, while in the latter, mediation is the most developed. In order to deepen this comparison, a qualitative research of interpretative nature has been developed with the support of bibliographic-documentary material. The main conclusion is that access to justice is a human right that has been positivized as a fundamental right in the constitutions of both Colombia and Russia. However, the Colombian Constitution allows individuals to exercise their jurisdictional functions on a temporary basis, unlike the Russian Constitution, which only authorizes judges from the Federation to exercise their jurisdictional functions. While conciliation in Colombia is developed and implemented through State-supervised Conciliation and Arbitration Centers, mediation in Russia is in its initial phase and has gradually gained acceptance in society. In both states, the implementation of alternative dispute resolution mechanisms has been driven by the need to decongest the courts and tribunals of ordinary justice. Therefore, it is useful to insist on the massive use of these instruments to make possible a justice that comes from the parties in conflict, that can repair the relations of the subjects in dispute and that tends towards the construction of more peaceful societies.

scholarly journals Dispute Resolution for Islamic Banks in Indonesia

2021 ◽  
Vol 4 (SI) ◽  
Author(s):  
Atharyanshah Puneri
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Legal Framework ◽  
Islamic Banking ◽  
Islamic Banks ◽  
Banking And Finance ◽  
Finance Industry ◽  
Positive Law ◽  
Islamic Financial Institutions ◽  
Dispute Resolution Mechanism

The rapid growth of Islamic banking and finance industry demanded an improvement in term of standards, frameworks, policy, technologies, resources, and guidelines in order to go beyond without compromising the core values of Islam itself. In the context of legal framework of Islamic banking and finance, it is most likely this industry needs to be highly regulated in order to avoid manipulation and abuse by the irresponsible parties. One of the crucial issue in the area of Islamic Banks in Indonesia is regarding about the dispute resolution mechanism for Islamic Banks. Based on Indonesian positive law, there are two alternative dispute resolution mechanisms that can be exercised by parties to settle disputes in cases involving Islamic Financial Institutions (IFIs) namely through litigation or non-litigation. Litigation comes under the jurisdiction of the Religious Court. Researcher in this study are look deeper into the dispute resolution mechanism for Islamic Banks in Indonesia, as well as going through some decided cases. And based on the study done, it was found that alternative dispute resolution mechanism is more effective to resolve Islamic Banks dispute rather than litigation. In the future, researchers may conduct more research to examine deeper about the dispute resolution mechanism for the whole Islamic Economics and Finance in Indonesia. Moreover, researchers need to look at the regulators' and legislators’ perception towards dispute resolution and legal environment.

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