scholarly journals Zdatność arbitrażowa sporów uchwałowych w wybranych zagranicznych porządkach prawnych

2017 ◽  
Vol 21 ◽  
pp. 79-102
Author(s):  
Justyna Glinka ◽  
Łukasz Chyla
Keyword(s):  
Legal System ◽  
Comparative Perspective ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitration Clause ◽  
Main Emphasis ◽  
Near Future ◽  
Legal Barriers

The aim of the article is to present one of the greatest controversy of international commercial arbitration, which is an objective arbitrability of corporate disputes. The article presents the comparative perspective on arbitrability in certain jurisdictions as well as legal barriers that prevent some corporate disputes from being fully subjected to arbitration proceedings by the parties by an arbitration clause. Thorough analysis helps to identify the Polish approach amid international ones and propose certain solutions to challenges faced by Polish legislator. Due to all the similarities, the main emphasis is put on the analysis of German legal system, which can thus be used by Polish doctrine and judicature to successfully overcome some of the respective obstacles to be faced in the near future.

The Existence of the Doctrine of Severability and Competence-Competence under the Constellation of Indonesian Arbitration Law

Global Jurist ◽  
2019 ◽  
Vol 19 (2) ◽  
Author(s):  
Marko Cahya Sutanto
Keyword(s):  
Legal System ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitration Clause

Abstract When the parties choose Indonesia as the seat of arbitration, one might inquire whether Indonesian legal system is in conformity with the doctrines that developed in the field of international commercial arbitration. To fulfill that purpose, this paper discusses: (1) under the umbrella of severability doctrine, the agreement to arbitrate or arbitration clause is not classified as an accessory to the principal contract; and (2) the competence-competence doctrine is not adopted perfectly on the account of the question whether the tribunal can decide on its own jurisdiction is not explicitly touched.

scholarly journals THE EXAMINATION OF COMPETENCE: COMPETENCE IN INTERNATIONAL COMMERCIAL ARBITRATION

2019 ◽  
Vol 8 (3) ◽  
Author(s):  
Homayoun Mafi ◽  
Mohammad Reza Khademi
Keyword(s):  
Competent Authority ◽  
Competency Assessment ◽  
Arbitral Tribunal ◽  
Legal Systems ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitration Clause ◽  
The Law

The arbitration clause implies the agreement of the parties' will to concede (assign) the existing or future dispute into arbitration, thus, in accordance with the law, the inevitable basis is to establish the referee's authority and jurisdiction and the influence of his/her verdict. Therefore, the formation of a court of arbitration and the issuance of a ruling requires that the existence and the validity of the contract of referral the matter to arbitration is acceptable to the parties. Although the parties may find a dispute (difference) in the existence and validity of the arbitration agreement, it is also likely that one of the parties denies or invalidates the existence of the arbitration agreement. In such a hypothesis, the formation of an arbitration authority and its review will entail consideration of the dispute before it. For this reason, one of the important issues that may arise in arbitration is the determination of the competent authority dealing with a dispute that may arise between the parties as to the existence or validity of the arbitration convention or jurisdiction. The issue of competency assessment (Competence - Competence), which improves the efficiency of the arbitral institution, can be seen in the most legal systems. Whether the arbitral tribunal has the merit of deciding whether to qualify under the terms of the arbitral agreement is a question that has long been addressed in the arbitration law as the competence to determine jurisdiction

scholarly journals Problems of determining a foreign element in dispute resolution in international commercial arbitration

2020 ◽  
pp. 361-365
Author(s):  
Volodymyr Nahnybida
Keyword(s):  
International Standards ◽  
Significant Part ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Commercial Activities ◽  
The Law ◽  
Model Law ◽  
Near Future ◽  
Theoretical Foundations ◽  
Commercial Disputes

The article is devoted to a comprehensive analysis of the problems of determining the arbitrability of disputes submitted for consideration and resolution to international commercial arbitration in terms of the presence or absence of a foreign element in such disputes. The theoretical foundations of the concept of a foreign element, arbitrability, criteria for determining the competence of international commercial arbitration regarding the resolution of a dispute are analyzed in detail. Also, the article, through the prism of the provisions of the UNCITRAL Model Law on International Commercial Arbitration, substantiates the need to improve article 1 of the Law of Ukraine «On International Commercial Arbitration». Based on theoretical and regulatory sources, court practice, the author concludes that it is necessary to supplement the provisions of the Law with norms on the possibility of transferring international commercial disputes to which individual entrepreneurs, states are parties, as well as disputes in which the place of fulfillment of a significant part of the obligations and the place with which the dispute is most closely related located in a country other than the place where the parties engaged in commercial activities. The author also points out that the mechanism for determining the presence of a foreign element in assessing international commercial disputes in accordance with the provisions of the current legislation does not fully comply with international standards enshrined in UN acts. Now the provisions of the Law of Ukraine «On International Commercial Arbitration» require additions both in terms of the subject composition (individual entrepreneurs, foreign states), and by other criteria, including the place of fulfillment of a significant part of the obligations and the place with which the dispute is most closely connected. Direct work is currently underway to improve the relevant provisions, in the near future they will be submitted to parliament for consideration and adoption.

Part VIII Arbitrators’ Decision-Making Power and Arbitral Tribunals’ Cessation of Functions, 21 Inherent and Implied Powers of Arbitrators

2016 ◽  
Author(s):  
Moses Margaret L
Keyword(s):  
Decision Making ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitration Clause

The powers of arbitrators in international commercial arbitration are based on the agreement of the parties, usually set forth in an arbitration clause contained in a contract between the parties or in a separate agreement to arbitrate. Increasingly, however, arbitrators are exercising powers that are not derived specifically from a party agreement, but rather may be implied or inherent. The terms ‘implied’ and ‘inherent’ are frequently used rather loosely, and sometimes interchangeably. This chapter develops a framework for understanding and using the terms, so that parties, arbitrators, and courts can employ common meanings and concepts when considering arbitral powers. Implied and inherent powers, properly exercised, can help ensure that the arbitral process fulfils its promise of providing a fair, ethical, and reasonable way to resolve disputes.

The Perspectives of African Countries on International Commercial Arbitration

1993 ◽  
Vol 6 (2) ◽  
pp. 331-356 ◽  
Author(s):  
Samuel K.B. Asante
Keyword(s):  
International Economic ◽  
Developing Countries ◽  
Legal System ◽  
The Other ◽  
African Countries ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
International Legal System ◽  
Sub Saharan ◽  
The One

The participation of developing countries in the international legal system poses a perennial dilemma. On the one hand the brutal facts of international economic and commercial interdependence make such participation inevitable. On the other hand, developing countries, for various reasons and with varying degrees of intensity, have articulated their reservations, or indeed experienced considerable difficulties, with respect to such participation. This article considers this dilemma with special reference to the experience of Sub-Saharan African countries in international commercial arbitration.

scholarly journals International Commercial Arbitration and the Possible Application Thereof in Iraq

2019 ◽  
Vol 30 (1) ◽  
Author(s):  
علي فوزي الموسوي
Keyword(s):  
Judicial System ◽  
Arbitral Tribunal ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitration Clause ◽  
International Court ◽  
Personal Status ◽  
Judicial Action ◽  
The Law ◽  
Commercial Disputes

 International commercial arbitration is a special judicial system based primarily on an agreement, be it an arbitration clause or an arbitration agreement (compromise), between parties to a dispute. It is therefore a system aiming at settling commercial disputes by submitting them to a single arbitrator, or an arbitral panel, or an arbitral tribunal (e. g. , the International Court of Arbitration). It is therefore also a means for settling an existing or future dispute that entails refraining from resorting to the competent judiciary. It is also an extra – judicial action aiming at establishing justice between people. The aim of arbitration is to bring justice to parties in conflict, but it is also designed to preserve peace among them, by providing solutions that are deemed satisfactory by each party, and through direct confrontation. It is a technical means for peaceful cooperation between countries with different systems. Resorting to international commercial arbitration is intended to solve a dispute based on a desire for reconciliation, to thereby avoid private retribution, without waiving the protection of the law, although it does entail waiver of state judges’ jurisdiction to rule over the dispute, since the parties choose their own judge. This type of Arbitration is called “international” if it relates to international commercial interests. Arbitration is also used in other areas, e. g. , personal status and tribal arbitration in Iraq. However, our study concentrates on international commercial arbitration and the possible application thereof in Iraq.

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