scholarly journals Mediation and arbitration: a legal dilemma

2020 ◽  
pp. 73-79
Author(s):  
OLGA Golovko ◽  
Vladislava Druz
Keyword(s):  
Dispute Resolution ◽  
Alternative Methods ◽  
Final Decision ◽  
Main Body ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Doing Business ◽  
Arbitration Process ◽  
Recognition And Enforcement ◽  
International Conventions

Problem setting. The active development of international trade in the 21st century requires the unification and consolidation of legislation and the creation of a unified law to enforce practice in areas related to international commercial arbitration and mediation. Economic disputes are an integral part of commercial relations. Arbitration as a mechanism for resolving conflicts is quite common. From French arbitrage translates as resolving a dispute by involving a mediator. At the same time, the parties may choose commercial mediation, consultation or negotiation. The implication is that it is quite difficult to choose only one method or the need to combine several methods to effectively resolve the dispute. Target of research. The purpose of the article is to analyze the main features of international commercial arbitration and mediation, determinate and establish peculiarities of legislative regulation in Ukraine and abroad. Analysis of recent researches and publications. A significant contribution to the study of this problem was made by O.M. Sadikov, N.O. Saniahmetova, M.M. Агарков, С.С. Alekseev, A.S. Vasiliev, O. A. Belyanevich, M. I. Braginsky, I. B. Zaverukha, I.E. Zamoysky, V.V. Kovalenko, G.F. Shershenev and others. Article’s main body. Ukraine has risen in the world rankings for the investment attractiveness «Doing Business 2020» – by 7 points and ranked 64th among 190 countries and significantly increased economic growth. This ensures the attractiveness of the investment market for Ukraine, which significantly affects the economic development of the country. For instance, a large number of agreements and obligations are concluded between the parties, in which the counterparties can be both the Ukrainian citizens and foreigners, which increases the growth rate of the Ukrainian economy. However, in the concluded agreements there are can be discrepancies, violations and improper fulfillment of obligations by contractors, which can turn into disrupts, interrelated contracts and even leads to a decrease in business activity and affects the reputation of such activities. To resolve such disputes, the parties have the opportunity to go to court or use alternative methods of resolving the conflict. At the discretion of the parties, alternative methods such as commercial mediation and international commercial arbitration are possible, which are designed to resolve disputes and disagreements arising from trading agreements. Conclusions and prospects for the development In conclusion, amendments in the legislation can help to precise the main advantages of international commercial arbitration and mediation, including: neutrality, centralized dispute resolution, final decision, confidentiality and time savings. That is why international commercial arbitration with the use of mediation is one of the most effective alternative methods of resolving commercial disputes. What is more, international arbitration and mediation as ways of alternative dispute resolution have been used since ancient times. However, recognition and enforcement at the level of state courts began in the 20th century – the signing of international conventions governing the procedure for enforcing and enforcing decisions, and states – parties to the conventions – ratified and enshrined in national law. In the future, there is an opportunity to improve the legislation by implementation of the new Act “On Mediation” and also by including mediation as a necessary part of arbitration process into the official rules.

Part V International Dispute Resolution, 19 International Commercial Arbitration

2015 ◽  
Keyword(s):  
Dispute Resolution ◽  
Commercial Arbitration ◽  
Conflict Of Laws ◽  
International Commercial Arbitration ◽  
National Courts ◽  
International Dispute ◽  
Recognition And Enforcement ◽  
Model Law ◽  
The Relationship ◽  
Distinguishing Features

This chapter examines the nature of international commercial arbitration and its distinguishing features; the harmonisation of the law of international commercial arbitration; international arbitration and the conflict of laws; the review of arbitral awards; and the recognition and enforcement of arbitral awards. Consideration is given to the contribution made by the UNCITRAL Model law on International Commercial Arbitration and to the rules of various arbitral institutions (such as the ICC) to the harmonisation of arbitral law and practice. Also examined is the relationship between arbitration and national courts and national law, particularly in the context of the debate over delocalisation.

Enercon India v. Enercon GmbH: Concluded Contract, Arbitration and Intellectual Property

2014 ◽  
pp. 1-12
Author(s):  
Anurag K. Agarwal
Keyword(s):  
Technology Transfer ◽  
Intellectual Property ◽  
Dispute Resolution ◽  
Resolution Method ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Doing Business ◽  
The Status ◽  
Court Proceedings

The case deals with the issues of technology transfer and protection of intellectual property in an international contract, with the International commercial arbitration as the dispute resolution method. The case highlights the distrust between parties when they do not want to continue doing business together and the use of legal technicalities to delay the matter from settling and utter confusion due to international nature of contract, multiple court proceedings in different countries and even questioning the status of the contract – whether a concluded contract or not.

scholarly journals International Commercial Arbitration and the Canadian Experience

1995 ◽  
Vol 34 (1) ◽  
pp. 137 ◽  
Author(s):  
David R. Haigh ◽  
Alicia K. Kunetzki ◽  
Christine M. Antony
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Canadian Experience ◽  
The Future ◽  
Model Law ◽  
International Conventions

International Commercial Arbitration although enjoying a long pedigree, has only recently become a "hot topic." This is due to the growing trends towards institutionalizing and unifying ICA processes. These trends are signified by the rise in private, neutral arbitration institutions and by the adoption, in many states, of international conventions and model laws. The unification of laws is the most recent process in this trend. These trends are all examined in some detail. It is noted how the lex arbitri, or law of the situs of the arbitration, can affect the rules and procedures of the arbitration. The UNCITRAL Model Law is examined as the key example of the unification of laws movement. The alternative dispute resolution provision of NAFTA is also commented on. The authors then focus specifically on Canada's contributions to and participation in ICA. In an important closing section, Canadian jurisprudence interpreting the new Canadian ICA legislation is comprehensively surveyed. The authors conclude by giving an outlook on the future of ICA and Canada's role therein.

Methods of Resolving Disputes Arising from Smart Contracts

Lex Russica ◽  
2020 ◽  
pp. 9-20 ◽  
Author(s):  
O. F. Zasemkova
Keyword(s):  
Dispute Resolution ◽  
Industrial Revolution ◽  
New Technologies ◽  
Rapid Development ◽  
Smart Contracts ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Applicable Law ◽  
Blockchain Technology ◽  
Recognition And Enforcement

With the rapid development of new technologies taking place during the 4th Industrial Revolution, new types of disputes of significant specificity have gradually begun to emerge. Among such cases a special category of cases has been formed by disputes arising from smart contracts based on block chain technology. There are two possible ways to resolve such disputes. Under the first approach, they are subject to consideration by traditional arbitration institutions, guided by the usual rules and guidelines (blockchain arbitration). The second approach involves the need to create innovative applications based on blockchain technology and designed to resolve disputes arising in a digital decentralized environment ( blockchain arbitration). Such applications, in turn, are divided into two groups. The first group consists of projects involving the creation of a special arbitration combining the advantages of international commercial arbitration and blockchain technology; the second group includes projects involving the establishment of a decentralized quasi-judicial system for dispute resolution. The paper attempts to analyze the most interesting projects related to each of the listed groups and assess the prospects of their development. Based on the results of the analysis, the author comes to the conclusion that the implementation of such projects will lead to the emergence of many issues (among which the problem of choice of applicable law, determination of place of arbitration, arbitrability, as well as the possibility of recognition and enforcement of awards made by such arbitral tribunal). Under the influence of new technologies, international commercial arbitration is gaining a new direction of its development. In the future, the development of new technologies will require not only rationalization of existing dispute resolution mechanisms, but also a fundamental rethinking.

Problems of recognition and enforcement of international commercial arbitration decisions

2021 ◽  
Author(s):  
Rafael' Komilzhonov ◽  
Yuliya Ivanova
Keyword(s):  
Russian Federation ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Recognition And Enforcement ◽  
The Russian Federation ◽  
Arbitration Award

The article analyzes the problematic aspects of recognition and enforcement of international commercial arbitration decisions on the territory of the Russian Federation. It is noted the complexity and lack of procedural guarantees for the parties to the dispute to implement the arbitration award. It is concluded that it is necessary to remove obstacles to the rapid and effective execution of commercial arbitration decisions.

Emergency Arbitrator: Indian Prospects

LAW REVIEW ◽  
2018 ◽  
Vol 38 (1) ◽  
Author(s):  
Dr. Ashish Kumar Srivastava
Keyword(s):  
Dispute Resolution ◽  
Third Parties ◽  
Real Problem ◽  
Anglo Saxon ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
High Courts ◽  
Interim Measures ◽  
Indian Perspective

International commercial arbitration is one of the most favourite mode of dispute resolution in world for resolving commercial disputes. Speed and cost are two important features what makes arbitrationa sought-after mode for dispute resolution because in conventional dispute resolution by courts ‘Remedy becomes worse than malady’ due to delay and cost. Legalism and authoritative courts in Anglo Saxon societies make the justice dilatory and expensive which is termed analogically as a disease of ‘Adversariasis’. Judicial minimalism is encouraged by entrepreneurs and business class of world which results in enhanced thrust on international commercial arbitration. In any arbitration interim measures are sine quo non. The irreparable loss and balance of convenience demands intervention by authoritative body to order and issue processes which can binds parties and third parties. In such cases unless interim measures are sought by municipal national courts no effective and binding interim remedies can be granted to the parties and third parties. The arbitrator once appointed is competent enough to grant interim measures and it can also decide about its jurisdiction based on doctrine of Kompetenz-Kompetenz. However, if before the appointment of arbitrator, the need of urgent interim measures arises then obviously parties have to go to the municipal national courts but this judicial intervention is not the intent of parties as they are seeking judicial minimalism. In such situations the urgent interim measures can be granted by emergency arbitrator. The Arbitration and Conciliation Act, 1996 is silent about emergency arbitrator but Delhi and Bombay High Courts have given some pragmatic judgments, making the provision of emergency arbitrator, a reality. The real problem in emergency arbitrator is how one can grant interim relief even without being in existence i.e. when arbitrator itself is non est. ICC, SIAC and LCIA provide for emergency arbitrator. In this paper the author has tried to make an analytical and comparative overview of emergency arbitrator in Indian Perspective.

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.

Sign in / Sign up

Export Citation Format

Share Document