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.

7 Arbitration Procedure and Assistance and Control by the Court

2020 ◽  
Author(s):  
Oda Hiroshi
Keyword(s):  
Fundamental Principle ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Institutional Rules ◽  
Arbitration Procedure ◽  
Russian Law ◽  
The Law ◽  
Model Law ◽  
And Control

This chapter focuses on the arbitration procedure. The Russian Law on International Commercial Arbitration does not contain detailed provisions on the procedure of arbitration as is the case with the UNCITRAL Model Law. Parties may freely agree on the procedure of arbitration provided that the agreement is compatible with the Law on International Commercial Arbitration. In the absence of such an agreement, the arbitration tribunal may conduct arbitration as they find adequate, including deciding on the admissibility, relativity, and significance of evidence. Therefore, details of the procedure are determined by the institutional rules. The fundamental principle of arbitral procedure is the equality of the parties. Each party must be given every possibility of presenting their own case. The chapter then looks at the provisions on the assistance and control of arbitration by the court introduced by the 2015 Reform.

International commercial arbitration in Uzbekistan: current state and development prospects

2020 ◽  
Vol 3 (12) ◽  
pp. 47-49
Author(s):  
Ziyoda Boratova
Keyword(s):  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Legal Proceedings ◽  
Current State ◽  
History Of ◽  
Recognition And Enforcement ◽  
The Law ◽  
The Republic ◽  
Development Prospects ◽  
Commercial Disputes

This article is devoted to a number of issues relating to the functioning of international commercial arbitration as a non-State mechanism for the settlement of international commercial disputes in the Republic of Uzbekistan. In article also found a brief introduction on the history of arbitration in Uzbekistan since its independence. Special attention is paid to the rules introduced since the entry into force of the Law of the Republic of Uzbekistan “On international commercial arbitration”. Moreover, the author highlights some problematic issues and inconsistencies that exist in the legislation on legal proceedings in arbitration courts. The author also addresses several issues regarding the recognition and enforcement of arbitral awards.

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.

Notes: To stay or not to stay? Admiralty proceedings after the International Arbitration Act 15 of 2017: Atakas Ticaret Ve Nakliyat AS v Glencore International AG

2021 ◽  
Vol 138 (1) ◽  
pp. 40-57
Author(s):  
Dusty-Lee Donnelly ◽  
Seshni Govindasamy
Keyword(s):  
Case Note ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
High Court ◽  
International Commercial Arbitration ◽  
The Republic ◽  
Model Law

The decision in Atakas Ticaret Ve Nakliyat AS v Glencore International AG 2019 (5) SA 379 (SCA) made important remarks to the effect that the discretion to effect a joinder to admiralty proceedings under s 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983, and the discretion to refuse a stay of proceedings under s 7(1)(b) of the Act, are ‘untouched’ by art 8 of the UNCITRAL Model Law on International Arbitration that is incorporated under the International Arbitration Act 15 of 2017. The court reached this decision on the basis that, in terms of art 1(5), the Model Law does not affect other laws of the Republic under which matters may not be referred to arbitration, or may only be so referred subject to conditions. This case note analyses the nature and extent of the court’s discretion under art 8(1) of the Model Law, the argument for an implied repeal of s 7(1)(b) of the Admiralty Jurisdiction Regulation Act, the interpretation of art 1(5) of the Model Law, and the questions left unanswered by the judgment. It argues that although the Model Law does not automatically oust the jurisdiction of the high court exercising admiralty jurisdiction to hear a maritime claim, the court only retains a narrow discretion to refuse a stay of those proceedings when an international commercial arbitration agreement exists in respect of the dispute.

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.

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