scholarly journals The scope of rights of appeal (not recourse) from arbitration awards

2021 ◽  
Author(s):  
◽  
Benjamin Suter
Keyword(s):  
United States ◽  
United Kingdom ◽  
New Zealand ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
The United Kingdom ◽  
Law Courts ◽  
Model Law ◽  
The Right

<p>This paper examines the scope of rights of appeal from arbitration awards in New Zealand, Singapore, Switzerland, the United Kingdom and the United States.  In countries that have drafted their legislation after the UNCITRAL Model Law appeals are often excluded and only recourse based on very narrow grounds is available. While many countries are more permissive with regards to appeals than the Model Law in that they allow the parties to opt for more expansive review, none of the examined jurisdictions give the parties the right to opt for appeals on questions of law and fact.  In several cases parties have tried to expand the rights of appeal by agreement. Such agreements are deemed invalid in all jurisdictions. When examining whether the invalid clause renders the entire arbitration agreement invalid, courts in common law jurisdictions have applied the doctrine of severance in some variations. Civil law courts usually examine whether the parties would have concluded the contract without the invalid clause (“but for”-test). This paper suggests that many of these tests are not suitable for arbitration agreements where the parties do not exchange considerations but rather promise one another exactly the same. The preferable approach is to combine the “but for”-test with a test that assesses if severance alters the nature of the agreement.</p>

scholarly journals The scope of rights of appeal (not recourse) from arbitration awards

2021 ◽  
Author(s):  
◽  
Benjamin Suter
Keyword(s):  
United States ◽  
United Kingdom ◽  
New Zealand ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
The United Kingdom ◽  
Law Courts ◽  
Model Law ◽  
The Right

<p>This paper examines the scope of rights of appeal from arbitration awards in New Zealand, Singapore, Switzerland, the United Kingdom and the United States.  In countries that have drafted their legislation after the UNCITRAL Model Law appeals are often excluded and only recourse based on very narrow grounds is available. While many countries are more permissive with regards to appeals than the Model Law in that they allow the parties to opt for more expansive review, none of the examined jurisdictions give the parties the right to opt for appeals on questions of law and fact.  In several cases parties have tried to expand the rights of appeal by agreement. Such agreements are deemed invalid in all jurisdictions. When examining whether the invalid clause renders the entire arbitration agreement invalid, courts in common law jurisdictions have applied the doctrine of severance in some variations. Civil law courts usually examine whether the parties would have concluded the contract without the invalid clause (“but for”-test).  This paper suggests that many of these tests are not suitable for arbitration agreements where the parties do not exchange considerations but rather promise one another exactly the same. The preferable approach is to combine the “but for”-test with a test that assesses if severance alters the nature of the agreement.</p>

scholarly journals The scope of rights of appeal (not recourse) from arbitration awards

2021 ◽  
Author(s):  
◽  
Benjamin Suter
Keyword(s):  
United States ◽  
United Kingdom ◽  
New Zealand ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
The United Kingdom ◽  
Law Courts ◽  
Model Law ◽  
The Right

<p>This paper examines the scope of rights of appeal from arbitration awards in New Zealand, Singapore, Switzerland, the United Kingdom and the United States.  In countries that have drafted their legislation after the UNCITRAL Model Law appeals are often excluded and only recourse based on very narrow grounds is available. While many countries are more permissive with regards to appeals than the Model Law in that they allow the parties to opt for more expansive review, none of the examined jurisdictions give the parties the right to opt for appeals on questions of law and fact.  In several cases parties have tried to expand the rights of appeal by agreement. Such agreements are deemed invalid in all jurisdictions. When examining whether the invalid clause renders the entire arbitration agreement invalid, courts in common law jurisdictions have applied the doctrine of severance in some variations. Civil law courts usually examine whether the parties would have concluded the contract without the invalid clause (“but for”-test).  This paper suggests that many of these tests are not suitable for arbitration agreements where the parties do not exchange considerations but rather promise one another exactly the same. The preferable approach is to combine the “but for”-test with a test that assesses if severance alters the nature of the agreement.</p>

scholarly journals The scope of rights of appeal (not recourse) from arbitration awards

2021 ◽  
Author(s):  
◽  
Benjamin Suter
Keyword(s):  
United States ◽  
United Kingdom ◽  
New Zealand ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
The United Kingdom ◽  
Law Courts ◽  
Model Law ◽  
The Right

<p>This paper examines the scope of rights of appeal from arbitration awards in New Zealand, Singapore, Switzerland, the United Kingdom and the United States.  In countries that have drafted their legislation after the UNCITRAL Model Law appeals are often excluded and only recourse based on very narrow grounds is available. While many countries are more permissive with regards to appeals than the Model Law in that they allow the parties to opt for more expansive review, none of the examined jurisdictions give the parties the right to opt for appeals on questions of law and fact.  In several cases parties have tried to expand the rights of appeal by agreement. Such agreements are deemed invalid in all jurisdictions. When examining whether the invalid clause renders the entire arbitration agreement invalid, courts in common law jurisdictions have applied the doctrine of severance in some variations. Civil law courts usually examine whether the parties would have concluded the contract without the invalid clause (“but for”-test). This paper suggests that many of these tests are not suitable for arbitration agreements where the parties do not exchange considerations but rather promise one another exactly the same. The preferable approach is to combine the “but for”-test with a test that assesses if severance alters the nature of the agreement.</p>

Introduction The Birth and Growth of Judicial Review in the Civil Law World

2021 ◽  
pp. 1-8
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
South Africa ◽  
United Kingdom ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
The Political ◽  
The United Kingdom

This book is about the stunning birth and growth of judicial review in the civil law world, since 1945. In Volume I of this two-volume series, I showed that judicial review was born and grew in common law G-20 constitutional democracies and in Israel primarily: (1) when there is a need for a federalism or a separation of powers umpire, (2) when there is a rights from wrongs dynamic, (3) when there is borrowing, and (4) when the political structure of a country’s institutions leaves space within which the judiciary can operate. The countries discussed in Volume I were the following: (1) the United States, (2) Canada, (3) Australia, (4) India, (5) Israel, (6) South Africa, and (7) the United Kingdom....

Security Council

1954 ◽  
Vol 8 (4) ◽  
pp. 513-517
Keyword(s):  
United States ◽  
United Kingdom ◽  
New Zealand ◽  
Soviet Union ◽  
Security Council ◽  
The United States ◽  
International Peace ◽  
The United Kingdom ◽  
Peace And Security ◽  
Foreign Ministers

The question of the threat to Thailand was discussed by the Security Council at its 673d and 674th meetings. After again explaining the reasons for his government's belief that the condition of tension in the general region in which Thailand was located would, if continued, endanger the maintenance of international peace and security, the Thai representative, Pote Sarasin, again requested that the Peace Observation Commission establish a sub-commission of from three to five members to dispatch observers to Thailand and to visit Thailand itself if it were deemed necessary. The Thai draft differed from earlier Thai proposals, however, in that the original mandate of the sub-commission applie only to the territory of Thailand; if the sub-commission felt that it could not adequately accomplish its mission without observation or visit in states contiguous to Thailand, the Peace Observation Commission or the Security Council could issue the necessary instructions. Representatives of New Zealand, Turkey, Brazil, China, the United Kingdom, the United States, Denmark, Colombia and France spoke in support of the Thai draft. They denied, as had been alleged by the Soviet representative (Tsarapkin) at an earlier meeting, that Council consideration or action on this question would be detrimental to the success of the negotiations between the Foreign Ministers of the United States, United Kingdom, France, Chinese People's Republic, Soviet Union and other states in Geneva. While agreeing that it would be impropitious for the Council to consider directly the situation in Indochina as long as it was being discussed in Geneva, they argued that the question raised by Thailand was quite separate and that the Council had a duty to comply with the Thai request.

Conclusion The American and Westminster Models

2021 ◽  
pp. 391-396
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Human Rights ◽  
United Kingdom ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Common Law ◽  
The United States ◽  
State Of Emergency ◽  
The United Kingdom ◽  
European Court

This concluding chapter identifies the four major causes of the growth and origin of judicial review in the G-20 common law countries and in Israel. First, the need for a federalism umpire, and occasionally a separation of powers umpire, played a major role in the development of judicial review of the constitutionality of legislation in the United States, in Canada, in Australia, in India, and most recently in the United Kingdom. Second, there is a rights from wrongs phenomenon at work in the growth of judicial review in the United States, after the Civil War; in Canada, with the 1982 adoption of the Canadian Charter of Rights and Freedoms; in India, after the Indira Gandhi State of Emergency led to a massive trampling on human rights; in Israel, after the Holocaust; in South Africa, after racist apartheid misrule; and in the United Kingdom, after that country accumulated an embarrassing record before the European Court of Human Rights prior to 1998. This proves that judicial review of the constitutionality of legislation often occurs in response to a deprivation of human rights. Third, the seven common law countries all borrowed a lot from one another, and from civil law countries, in writing their constitutions. Fourth, and finally, the common law countries all create multiple democratic institutions or political parties, which renders any political attempt to strike back at the Supreme Court impossible to maintain.

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