scholarly journals Agreements Limiting or Expanding Grounds for Annulling International Arbitral Awards

2020 ◽  
pp. 130-157
Author(s):  
Dragana Nikolić

Within the traditional framework of international arbitration, an arbitral tribunal produces a final and binding award, which can be only exceptionally annulled based on the narrowly tailored grounds available under the law of the seat. However, parties sometimes seek to limit or expand the grounds for annulment, hoping to increase the chances for successful resolution of their dispute. As the clauses modifying the scope of judicial review become more popular, important questions come to the fore with respect to their validity, application and usefulness. This paper will analyse the compatibility of these clauses with the nature of arbitration, by examining their compliance with the principles of party autonomy and finality. Main characteristics and application of these arbitration clauses will be also discussed. In addition, the author will explore how the stipulation of these clauses affects the quality of awards, integrity of arbitral proceedings and enforceability of awards abroad.

Author(s):  
Blackaby Nigel ◽  
Partasides Constantine ◽  
Redfern Alan ◽  
Hunter Martin

This chapter outlines the conduct of the tribunal and the parties during arbitration proceedings. In general, an arbitral tribunal must conduct the arbitration in accordance with the procedure agreed by the parties. If it fails to do so, the award may be set aside, or refused recognition and enforcement. However, the freedom of the parties to dictate the procedure to be followed in an international arbitration is not unrestricted. The procedure must comply with any mandatory rules and public policy requirements of the law of the juridical seat of the arbitration. It must also take into account the provisions of the international rules on arbitration, such as those of the ICC, which aim to ensure that arbitral proceedings are conducted fairly. Accordingly, a balance must be struck between the parties’ wishes concerning the procedure to be followed and any overriding requirements of the legal regime that governs the arbitration.


2019 ◽  
Vol 15 (4) ◽  
pp. 774
Author(s):  
Muhammad Reza Maulana

Pada hakikatnya judicial review dilaksanakan demi terciptanya keseimbangan hukum dan terpenuhinya hak konstitusional setiap pemangku kepentingan untuk bertindak dan mengajukan permohonan pembatalan suatu undang-undang kepada Mahkamah Konstitusi dengan menyatakan undang-undang tersebut telah bertentangan dengan UUD RI 1945. Pengujian undang-undang terhadap UUD 1945 dilakukan dalam upaya penyempurnaan hukum yang berlandaskan konstitusi. Setiap undang-undang haruslah dilandasi oleh aturan dasar yang tidak hanya tercantum pada konsiderannya saja, melainkan dibuat serta dilaksanakan berlandaskan nilai dan norma konstitusionalitas. judicial review yang selama ini dilakukan oleh banyak pihak pada Mahkamah Konstitusi membuktikan bahwa kualitas produk hukum atau aturan hukum yang selama ini dilahirkan oleh pembuat undang-undang seringkali bertolak belakang dengan keteraturan hukum, sehingga diperlukan langkah hukum preventive demi menjaga integritas lembaga pembentuk undang-undang agar tidak dianggap melahirkan produk hukum yang asal-asalan. Oleh karena itu, di dalam penelitian ini akan mengkaji dan menginisiasi pembentukan produk hukum yang berkualitas konstitusi sehingga Mahkamah Konstitusi sebagai lembaga pengawal konstitusi memberikan kontribusi dengan cita konstitusi dan melahirkan produk hukum dengan kualitas konstitusi. Dalam penelitian ini metode yang yang digunakan adalah yuridis normatif dengan menggunakan pendekatan undang-undang dan konseptual. Hasil penelitian ini menggambarkan betapa pentingnya upaya preventive sebelum suatu aturan hukum kemudian ditetapkan, disahkan dan dilaksanakan, dimana ada persoalan konstitusionalitas terhadap implementasi suatu produk hukum yang kemudian oleh Mahkamah Konstitusi dinyatakan bertentangan dengan Undang-Undang Dasar Republik Indonesia 1945.Basically, judicial review has done to create a balance of law and to fulfill the constitutional right for every stakeholder to act and apply for application to constitutional court by stating the rule was contradicted to the constitution of Republic of Indonesia 1945. The application was made as an effort to perfect the law which is based on the constitution. Each rule has to be based on the basic rules, not only on its consideration but also is made and implemented in basic values and norms of contitutionality. Judicial review done by many people on constitutional court has proven that the quality of law product or rules of law made by the legislative often contradict with constitutional order of law, so it is necessary to take a step on preventive legal measurer to keep up the integrity of the rule maker of being judged making unqualified legal products. Therefore, this research reviews and initiates the production of law product so that the Constitutional Court can give preventive contribution on each legal products made, to be able to run with the ideals of the constitution and create legal products with constitution quality. This research used juridical normative method with legal and conceptual approaches. The results of this study illustrate how important preventive efforts before a rule of law are then set, ratified and implemented. In which there is a constitutional issue on the implementation of a legal product, that will be later declared by the Constitutional Court to be contradictory to the 1945 Constitution of the Republic of Indonesian.


Author(s):  
Kaufmann-Kohler Gabrielle ◽  
Rigozzi Antonio

This chapter considers how arbitral proceedings unfold once the tribunal is constituted (as discussed in chapter 4), up until the deliberation phase (which is addressed in chapter 7). It starts by identifying the rules that govern the conduct of arbitral proceedings and then examines the interaction between those rules, before describing, by reference to current best practices, the different steps in a ‘standard’ international arbitration. The discussion illustrates, in particular, the articulation between fundamental principles of due process and the parties’ autonomy and arbitrators’ powers in organizing arbitral proceedings. The presentation of arbitral practice is supplemented by a number of model procedural documents: terms of reference for ICC arbitrations, terms of appointment, and a set of specific procedural rules suitable for both institutional and ad hoc arbitration, as well as a standard letter on the appointment of an arbitral secretary. The chapter’s final section is devoted to provisional measures.


Author(s):  
Baumann Antje ◽  
Pfitzner Tanja V

This introduction discusses arbitration as a method for resolving disputes. It first provides an overview of the advantages of arbitration as a dispute resolution mechanism and a brief historical background on the development of modern international arbitration before exploring the effects of arbitration agreements, taking into account the applicable law for the question of arbitrability (objective arbitrability and subjective arbitrability). It then considers two options between which parties can choose when deciding to settle their dispute by arbitration: institutional arbitration and ad hoc arbitration. It also analyses the parties’ right to choose—based on the principle of party autonomy—the place and language of arbitration, the substantive law applicable to the merits of the dispute, and number of arbitrators. Finally, it explains the applicable rules and general structure of arbitral proceedings as well as the enforceability of arbitral awards.


Author(s):  
Blackaby Nigel ◽  
Partasides Constantine ◽  
Redfern Alan ◽  
Hunter Martin

This chapter analyses the different applicable laws that govern international arbitration. International arbitration, unlike its domestic counterpart, usually involves more than one system of law or of legal rules. It identifies five different systems of law that may have a bearing on an international arbitration in practice: the law governing the arbitration agreement and the performance of that agreement; the law governing the existence and proceedings of the arbitral tribunal (the lex arbitri); the law, or the relevant legal rules, governing the substantive issues in dispute (generally described as the ‘applicable law’, the ‘governing law’, ‘the proper law of the contract’, or ‘the substantive law’); other applicable rules and non-binding guidelines and recommendations; and the law governing recognition and enforcement of the award.


Author(s):  
Blackaby Nigel ◽  
Partasides Constantine ◽  
Redfern Alan ◽  
Hunter Martin

This chapter gives an ‘overview’ of the law and practice of international arbitration. It begins with the parties’ agreement to arbitrate, and the laws and treaties that provide for enforcement of such agreements both nationally and internationally. It looks at the complications that arise when more than two parties to the dispute are involved, and at the contemporary problems of joinder of parties and consolidation of arbitrations. The chapter then considers whether to choose ad hoc or institutional arbitration, how to establish an arbitral tribunal, challenges to arbitrators, and the powers and duties of arbitrators. It also gives an overview of the key issues that are dealt with in the following chapters, including the conduct of an arbitration, challenges to arbitral awards, and the recognition and enforcement of such awards.


2020 ◽  
pp. 1-22
Author(s):  
Amin Dawwas ◽  
Tareq Kameel

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).


2019 ◽  
Vol 5 (2) ◽  
Author(s):  
Kantrey Sugiarto ◽  
Heru Drajat Sulistyo

On April 4, 2017, the Panel of Judges of the Constitutional Court read out the decision on a judicial review of the laws of the Regional Government registered with case number 137 / PUU-XIII / 2015. Of the 9 (nine) judges who tried the case, there were 4 (four) judges who did dissenting opinions. With the Dissenting Opinion in this decision can be used as one of the quality parameters of the decision in fulfilling the sense of justice of the community, because it can be assessed the quality of thought of each judge and know the inner atmosphere that occurs during the judge deliberation meeting which is one of the crucial stages before a court ruling. The description of the activities carried out is, first to identify the facts of the law and to eliminate the irrelevant matters to establish legal issues to be solved. Second, collecting legal materials that are relevant to legal issues that are discussed so as to be able to solve these legal issues. Third, review legal issues submitted based on the materials collected. Fourth, draw conclusions in the form of arguments that answer legal issues. Fifth, provide text based on the arguments built in the conclusions.


2021 ◽  
pp. 1-110
Author(s):  
Sindhura Natesha Polepalli

On June 26, 2015, the Italian Republic (Italy) commenced arbitral proceedings under the United Nations Convention on the Law of the Sea (UNCLOS) by serving on the Republic of India (India) a Notification under Article 287 and Annex VII, Article 1 of UNCLOS and Statement of Claim (Notification and Statement of Claim) in respect of the dispute concerning the Enrica Lexie incident. On July 2, 2020, having issued its Award to Italy and India (the Parties), the Arbitral Tribunal (Tribunal) published the operative part or the “dispositive” of the Award at the Permanent Court of Arbitration, which acts as registry for the proceedings.


Author(s):  
Yu Jianlong ◽  
Cao Lijun

This chapter highlights the arbitral tribunal. The right of parties to select arbitrators for arbitrating their disputes is probably the most important aspect of party autonomy in international arbitration. The chapter discusses: the duties of an arbitral tribunal (Article 24); the number of arbitrators (Article 25); the nomination and appointment of arbitrator (Articles 26 to 31); challenge to the arbitrator (Article 32); and the replacement of arbitrator (Article 33) in CIETAC arbitrations. Article 24 clarifies that arbitrators, particularly party-nominated arbitrators, shall not represent either party, shall handle the case independently, and treat both parties equally. In order to understand this provision it is necessary to look into the relevant statutory provisions in the PRC Arbitration Law and the CIETAC’s specific regulations on the ethical issues of arbitrators. The chapter concludes by discussing the ability of the majority of the arbitral tribunal to continue with the arbitration after the conclusion of the last hearing (Article 34).


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