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 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.

Applicability of the UNIDROIT Principles as the Law Governing the Merits of Arbitration in the Gulf Cooperation Council Countries

2020 ◽  
pp. 1-22
Author(s):  
Amin Dawwas ◽  
Tareq Kameel
Keyword(s):  
Gulf Cooperation Council ◽  
Arbitral Tribunal ◽  
Commercial Arbitration ◽  
Party Autonomy ◽  
International Commercial Arbitration ◽  
Rules Of Procedure ◽  
The Subject ◽  
The Law

Abstract According to the principle of party autonomy, the disputant parties may choose the law applicable to the merits of international commercial arbitration. In the absence of the parties’ choice, the arbitral tribunal shall determine this law. This article discusses the applicability of ‘rules of law’, namely the UNIDROIT Principles of International Commercial Contracts (UNIDROIT Principles) to the merits of the dispute. It shows whether the UNIDROIT Principles can be selected by the disputant parties or the arbitral tribunal to govern the subject of the dispute under the Arbitration Laws of the Gulf Cooperation Council (GCC) Countries as well as the Constitution and the Arbitral Rules of Procedure of the GCC Commercial Arbitration Center (GCCCAC).

scholarly journals Legalitas Kewenangan Badan Arbitrase Nasional Indonesia dalam Penerapan Prinsip Competence-Competence

Acta Comitas ◽  
2019 ◽  
Vol 4 (2) ◽  
pp. 261
Author(s):  
Wiratami Wiratami
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Arbitral Tribunal ◽  
Commercial Arbitration ◽  
Arbitration Clause ◽  
Legal Problems ◽  
Arbitration Board ◽  
Research Problems ◽  
Legal Concepts

According to the doctrine of the principle of competence-competence, the arbitration board has jurisdiction to declare itself whether he has the authority to hear and decide on arbitration disputes. What is meant by the determination of jurisdiction is related to the validity of the arbitration clause and the validity of an agreement. The arbitral tribunal has the authority to evaluate or determine the validity of the arbitration agreement or the validity of the arbitration clause if the parties dispute the matter. The principle of competence-competence is one of the principles regarding the jurisdiction of this arbitration board that has been generally and widely accepted as a principle doctrine in international trade arbitration. This principle is one of the principles regarding the jurisdiction of arbitration board that have been widely accepted and generally as a principle in international commercial arbitration. The legal problems in this research relate to the norm vacancies regarding the competence-competence principle in Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution (hereinafter abbreviated as AAPS Law).Solving research problems using normative legal methods with a legal approach, cases, and analysis of legal concepts. The results of this reseach that (1) The Indonesian National Arbitration Board has been regulated in article 1 point 8 of the Arbitrtion Law and Alternative Dispute Resolution juncto article 31. (2) The provisions of article 18 paragraph 1 of the rules of the Indonesian National Arbitration Board can be used as the legality of authority in determining the validity of the arbitration agreement, if the agreement of the parties “ is not null and void” or is considered to have never existed in its entirety. Menurut doktrin prinsip comptence-competence, arbitrase mempunyai jurisdiksi didalam menyatakan sendiri apakah arbitrase tersebut mempunyai kewenangan untuk mendengarkan dan memutuskan sengketa arbitrase. Penentuan kewenangan arbitrase terkait dengan keabsahan suatu klausul arbitrase maupun perjanjian arbitrase apabila mereka yang membuat perjanjian mempersoalkan mengenai hal itu.Doktrin prinip competence-competence ini merupakan satu dari sekian prinsip mengenai jurisdiksi arbitrase. Doktrin prinsip ini telah dikenal luas sebagai doktrin prinsip dalam arbitrase perdagangan internasional. Permasalahan hukumnya berkaitan dengan adanya kekosongan norma hukum mengenai prinsip competence-competence dalam Undang-Undang Nomor 30 tahun 1999 tentang Arbitrase dan Alternatif Penyelesaian Sengketa (selanjutnya disebut UU AAPS). Penelitian ini menggunakan metode hukum normatif dengan pendekatan perundang-undangan, kasus dan analisa konsep hukum. Hasil dari penelitian ini bahwa (1) BANI telah diatur dalam ketentuan Pasal 1 angka 8 UU AAPS juncto Pasal 31. (2) Ketentuan Pasal 18 ayat (1) Peraturan BANI dapat dijadikan landasan legalitas kewenangan BANI dalam menentukan keabsahan perjanjian arbitarse, apabila perjanjian para pihak untuk menyelesaikan sengketa melalui arbitrase tidak “batal demi hukum” atau dianggap tidak pernah ada secara keseluruhan.

Part II The Doctrine of Res Judicata in International Commercial Arbitration, 5 Search for an Appropriate Approach

2016 ◽  
Author(s):  
Schaffstein Silja
Keyword(s):  
Comparative Law ◽  
Commercial Arbitration ◽  
Conflict Of Laws ◽  
International Commercial Arbitration ◽  
Res Judicata ◽  
The Law

This chapter presents possible approaches in dealing with the problem of the res judicata doctrine in international commercial arbitration, namely the conflict-of-laws approach, comparative law approach, and transnational approach. The conflict-of-laws approach defines clear and generally accepted conflicts-of-law rules allowing arbitrators to determine the law or laws governing res judicata. The determination of conflict-of-laws rules will depend on the characterisation of res judicata as being of substantive or procedural nature. The comparative law approach compares different domestic laws to determine generally accepted res judicata principles common to a majority of states. Lastly, the transnational approach formulates uniform, autonomous res judicata principles that are better adapted to the particularities of international commercial arbitration created for litigation.

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.

Part III Arbitral Rules, 16 Rules of Arbitration of the International Chamber of Commerce (ICC)

2019 ◽  
Author(s):  
Baumann Antje
Keyword(s):  
Dispute Resolution ◽  
Arbitral Tribunal ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Time Limits ◽  
Chamber Of Commerce ◽  
International Court ◽  
Arbitral Proceedings ◽  
Number Of Parties ◽  
International Chamber Of Commerce

This chapter discusses the arbitration rules of the International Chamber of Commerce (ICC). It begins with a background on the ICC International Court of Arbitration, with emphasis on its role in the development of international commercial arbitration. It then examines the 2017 ICC Arbitration Rules, citing some relevant figures related to ICC arbitration for the year 2017, including the number of parties involved in cases, the arbitral tribunals, and awards rendered by arbitral tribunals. Figures on other ICC dispute resolution rules are also given. The chapter concludes with a commentary of Articles 1–42 of the ICC Arbitration Rules, which cover topics such as definitions; time limits for written notifications or communications; request for arbitration and the respondent’s counterclaims to such a request; effect of the arbitration agreement; constitution of the arbitral tribunal; appointment, confirmation, challenge, and replacement of arbitrators; and rules of law applicable to the arbitral proceedings.

9 The Enforcement of Arbitral Awards

2020 ◽  
Author(s):  
Oda Hiroshi
Keyword(s):  
Public Order ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Recognition And Enforcement ◽  
The Law ◽  
The Way

This concluding chapter explores the enforcement of arbitral awards. There are two primary laws relevant to the recognition and enforcement of arbitral awards of international commercial arbitration in Russia: the Law on International Commercial Arbitration of 1993 and the Code of Commercial Court Procedure of 2002. The former has the basic provision on the recognition and enforcement of awards and the grounds for refusal, while the latter provides for the procedural aspects of recognition and enforcement of arbitral awards. It is an established principle of international commercial arbitration that in deciding whether enforcement of awards is allowed or not, courts are not entitled to review the case on its merits. However, Russian judges are not always aware of this fundamental rule, or do not comply with it. The chapter then looks at the grounds for the refusal of recognition and enforcement of arbitral awards and the way Russian courts interpret these grounds. Particularly important is the understanding of public order by Russian courts. Finally, the practice of ‘Russian Torpedo’ is discussed.

2 The 2015 Reform of Arbitration

2020 ◽  
Author(s):  
Oda Hiroshi
Keyword(s):  
Russian Federation ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Russian Federation ◽  
Institutional Aspects ◽  
The Law

This chapter discusses the 2015 Arbitral Reform. The arbitral reform, which started in 2011, culminated in two sets of laws adopted by Parliament and signed by the president on 25 December 2015. The package comprised the Law on Arbitration of the Russian Federation and the Law on the amendments to the Laws in relation to the adoption of the above law. The latter included amendments to the Law on Commercial Court Procedure and the Law on International Commercial Arbitration. On 27 December 2018, the Law on Arbitration was further amended. The power to grant license to perform functions of permanent arbitral institutions was shifted to the Ministry of Justice. One of the fundamental issues which were contested in the process of the reform was whether the existing regime of segregation of international and domestic arbitration should be abandoned altogether or should be maintained. With the strong opposition from experts of international commercial arbitration supported by the Codification Commission and the President’s Administration, the system of two separate laws, that is, the Law on Arbitration and the Law on International Commercial Arbitration, was maintained. However, organisational/institutional aspects of arbitration, including international arbitration, are now regulated by the Law on Arbitration.

Intellectual Composition of Arbitral Tribunals According to the New Saudi Arbitration Law

2019 ◽  
Vol 33 (1) ◽  
pp. 99-108
Author(s):  
Reyadh Mohamed Seyadi
Keyword(s):  
Saudi Arabia ◽  
Significant Feature ◽  
Arbitral Tribunal ◽  
Legal Tradition ◽  
Kingdom Of Saudi Arabia ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
Model Law ◽  
Law Degree

Abstract One significant feature of arbitration that distinguishes it from litigation in national courts, is the parties’ freedom to select the arbitrator or members of the arbitral tribunal familiar with the kind of dispute that might arise or already has arisen. In 2012, a new arbitration law was issued in the Kingdom of Saudi Arabia (KSA) inspired by the texts of the Model Law on International Commercial Arbitration. In all its provisions it included the requirement not to violate Sharīʿah law (Islamic legal tradition). However, according to this law, the sole arbitrator or presiding arbitrator must hold a Bachelor of Laws (LLB) or Sharīʿah law degree. This provision is mandatory, and the parties cannot agree otherwise. This article seeks to provide some thoughts on this restriction through an analysis of arbitrator qualifications under Sharīʿah law in order to provide a better understanding of the position adopted by the KSA Arbitration Law.

Sign in / Sign up

Export Citation Format

Share Document