The Impartiality and Independence of Arbitrators in International Commercial Arbitration

2022 ◽  
Author(s):  
Stavroula Angoura
Keyword(s):  
Public Policy ◽  
Conflicts Of Interest ◽  
Case Law ◽  
Arbitral Tribunal ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration

Since arbitrator’s impartiality and independence constitutes the bedrock of international arbitration, more and more recent arbitral awards have been annulled or vacated on the grounds of lack of arbitrator’s impartiality. This work investigates whether a common international public policy core exists with regard to the concepts of impartiality and independence of arbitrators in international commercial arbitration. The book addresses the different constellations of arbitrator bias as considered by the courts of various jurisdictions, especially France, England, Switzerland, Greece and Germany. By introducing the ‘justifiable doubts’ to an arbitrator’s impartiality criterion and analyzing the above-mentioned national case law, the book categorizes instances that constitute lack of impartiality with reference to and interpretation of the IBA Guidelines on Conflicts of Interest in International Arbitration 2014. The work examines and systematizes how arbitrator impartiality can be contested at different stages of procedure: upon constitution of the arbitral tribunal, during arbitration proceedings, as well as after the rendering of the award at annulment, recognition or enforcement stage, while providing answers to the following questions: what must an arbitrator disclose; should an arbitrator investigate a possible fact or circumstance that may affect her impartiality, and to what extent; what is the relevance of the fact affecting arbitrator impartiality being obvious, well-known or easily accessible by the parties; under which preconditions could a party waive its right to contest lack of impartiality-implicitly or expressly. This study focuses specifically on the institution of waiver and analyses how it prevents a party from contesting arbitrator impartiality at the next procedural stage, should it fail to follow the specific procedures and preconditions - an issue that is unexamined in the literature to date.

The Procedural Rules Governing the Production of Documentary Evidence in International Arbitration – As Applied in Practice

2009 ◽  
Vol 8 (1) ◽  
pp. 27-90
Author(s):  
Nathan O'Malley
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Documentary Evidence ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The World ◽  
The Common ◽  
Over Time

AbstractThis article considers the provisions of the IBA Rules on the Taking of Evidence in International Commercial Arbitration pertaining to documentary evidence, Articles 2, 3, and 9. The IBA Rules have emerged over time as a compromise set of standards appropriate for international arbitration and are widely used by tribunals throughout the world. This piece provides examples of arbitral case law in respect of the application of the Rules to issues concerning the taking and admission of documentary evidence. Moreover, the article also addresses issues regarding the role of the IBA Rules in the judicial review of arbitral awards, and their use in investor-state arbitration as opposed to international commercial arbitration. The goal of this article is to provide a thorough, case based commentary on the common approach used by tribunals in this area of procedure.

scholarly journals La entrada e intervención de terceros en el arbitraje comercial internacional = Joinder and intervention of additional parties in international commercial arbitration

2020 ◽  
Vol 12 (1) ◽  
pp. 365
Author(s):  
María Victoria Sánchez Pos
Keyword(s):  
Third Parties ◽  
Arbitral Tribunal ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Party Autonomy ◽  
International Commercial Arbitration ◽  
The Right ◽  
Privacy And Confidentiality

Resumen: En el marco del arbitraje multiparte, la entrada e intervención de terceros es definida como la incorporación de partes adicionales a un arbitraje ya iniciado. Este mecanismo procesal presenta, sin embargo, multitud de dificultades que derivan de la naturaleza eminentemente consensual de la institución arbitral. Así, entre otras, la constancia de la voluntad -expresa o tácita- de todas las partes involucradas en el arbitraje a la entrada del tercero o la salvaguarda de su derecho esencial de participar de manera directa y equitativa en la constitución del tribunal arbitral y de las garantías de privacidad y confidencialidad del arbitraje. Partiendo de estas someras premisas, este trabajo tiene como objetivo el análisis crítico de las disposiciones específicas sobre la admisibilidad y presupuestos de la entrada e intervención de nuevas partes en el arbitraje que las instituciones arbitrales internacionales de mayor relevancia han regulado en los últimos años.Palabras clave: Entrada, intervención, terceros, partes adicionales, arbitraje multiparte, tribunal arbitral.Abstract: One of the major challenges that international arbitration has faced in the last decades is the regulation of multiparty arbitrations, which involve a confrontation between more than two parties with opposing interests. In this context, joinder and intervention deals with the need, in terms of justice and efficiency, to bring an additional party into the proceedings when the arbitration may already be in progress. However, the main characteristic of arbitration is its consensual nature. For this reason, mechanisms for joinder or intervention present considerable difficulties related to the principle of party autonomy, the right to equally participate in the nomination of the arbitrators and the protection of privacy and confidentiality in arbitration proceedings. Apart from dealing with these difficulties, the author discusses in this article the latest joinder provisions contained in leading arbitral rules.Keywords: Joinder, Intervention, Third parties, Additional parties, Multiparty Arbitration, Arbitral Tribunal

scholarly journals Interpretation of the «Public Policy» Category in Recent Judicial Practice

2021 ◽  
pp. 30-42
Author(s):  
Ivan KOSTIASHKIN ◽  
Olena CHERNIAK
Keyword(s):  
Public Policy ◽  
Case Law ◽  
The State ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Public ◽  
Judicial Practice ◽  
Recognition And Enforcement ◽  
Principles Of Justice ◽  
Definition Of

The article studies the concept of «public policy», presents doctrinal definitions of public policy, as well as definitions used in judicial practice, in particular in the decisions of the Supreme Court. It is established that the Ukrainian legislation does not contain a definition of «public policy», but from the analysis of case law it can be concluded that the public policy of any country includes the fundamental principles and principles of justice, morality, state system, political system and economic security, which the state wishes to protect, which means «public policy» is a broad and abstract concept. At the same time, such a position of the legislator, given the case law cited in the article, is justified and reasoned. It is analyzed that the Civil Code of Ukraine lists the grounds on which the transaction can be considered as violating public policy, at the same time, the analysis of case law shows that the category of public policy does not apply to any legal relationship in the state, but only on the essential foundations of law and order. The article also analyzes that the recognition or enforcement of the decisions of an international commercial arbitral tribunal may be denied if the court finds that the recognition and enforcement of this arbitral award is contrary to public policy of Ukraine, as an example listed court cases in which the enforcement of arbitral awards was refused due to a violation of public policy. In view of the above, it is proved in the article that the definition and understanding of the category of public policy is important in recognizing and bringing to the enforcement of international commercial arbitration courts decisions, as well as recognition of transactions as such that violates the public policy, which leads to insignificance of such transactions. It is summarized that today in Ukraine there is no normative definition of the concept of «public policy», and from the analysis of judicial practice we can conclude that judges interpret the concept of «public policy» quite broadly and abstractly. However, given that quite often cases of recognition of a transaction as contrary to public policy (invalid transaction), as well as the recognition and enforcement of international commercial arbitration and foreign courts judgments are «technical» cases brought in order to avoid the liability of a party against whom the decision was made, such an interpretation of the concept of «public policy» gives judges the opportunity to fully investigate, whether transactions or decisions in force violates public policy or the fundamental principles of justice and fairness of the state, without a statutory restriction on the concept of «public policy».

scholarly journals Punitive Damages Awards in International Arbitration: Franchising Case

2021 ◽  
Vol 14 (11) ◽  
pp. 1613-1625
Author(s):  
Thi Thuy Dung Tran ◽  
Keyword(s):  
United States ◽  
Public Policy ◽  
Significant Influence ◽  
The United States ◽  
Practical Significance ◽  
Punitive Damages ◽  
Arbitral Tribunal ◽  
Trade Disputes ◽  
Commercial Arbitration ◽  
International Commercial Arbitration

This article is written to evaluate the practical significance of punitive damages in the field of arbitration concerning international commercial disputes and franchise disputes. It finds that punitive damages awards are frequent in domestic arbitrations in the United States but not internationally common. This article discusses the severity of the punitive damages awards to explain why such decisions are not frequent in international trade disputes; it still has a significant influence that concerns the contracting parties, making them exclude punitive damages in their agreements. This article also explains the reasons for limiting the use of these punitive damages. The first one is the limitation of punitive damages applied to arbitration. Indeed, punitive damages are only recognised under a handful of domestic arbitration laws in a number of countries, especially the ones associated with contract claims. Secondly, the enforceability of such awards is internationally limited due to public policy. Therefore, this difficulty caused the arbitral tribunal to refuse to award such damages. Finally, the statistics on punitive damages award in international commercial arbitration are scarce, so the article refers to provide and analyse the cases that are not international-thereby discussing and evaluating the suitability of punitive damages in the context of international commercial arbitration

Non-Signatories in International Commercial Arbitration: Contesting the Myth of Consent

2018 ◽  
Vol 18 (2) ◽  
pp. 59-84
Author(s):  
Slavomír Halla
Keyword(s):  
Case Law ◽  
Good Faith ◽  
Mutual Understanding ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Starting Point ◽  
Professional Audience

Abstract Consent, the final frontier. International commercial arbitration is a dis­pute resolution mechanism embedded in consent of the parties involved. Presentation of such a mutual understanding is done through an arbitration agreement. However, the aim of this paper is to analyse whether its contractual, indeed consensual, nature is the only element which the courts use to identify the subjects who may compel or must be compelled to arbitrate disputes, or whether they employ other considerations as well. The paper will focus on extension doctrines which might be less known even to a professional audience: piercing of the corporate veil, estoppel & group of companies. A review of selected case law leads to a conclusion that consent-finding analysis is defi­nitely a starting point of any analysis. However, at the same time courts and arbitrators do indeed use tools of contract interpretation and the ones based on equity or good faith considerations to establish, and exceptionally force, the implication of consent far beyond what is obvious.

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.

REFUSAL TO RECOGNIZE AND GRANT PERMISSION TO ENFORCE INTERNATIONAL COMMERCIAL ARBITRATION AWARDS DUE TO IMPROPER NOTIFICATION ABOUT ARBITRATION PROCEEDINGS

2017 ◽  
Author(s):  
Anayit Khoperiya ◽  
Keyword(s):  
Supreme Court ◽  
Hague Convention ◽  
Case Law ◽  
Legal Assistance ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Negative Case ◽  
The Supreme Court ◽  
The Hague ◽  
The Hague Convention

The article analyses the refusal to recognize and grant permission to enforce awards of international commercial arbitration because of improper notification about the arbitration. The study concerns the new case law of the Supreme Court in cases of recognition and granting permission to enforce the awards of international commercial arbitration in cases where the party against whom the decision is made denies that it has been notified of the arbitration or appointment of an arbitrator. Particular attention was paid to the analysis of the decisions of the Supreme Court in cases No. 824/26/19 of November 28, 2019 and No. 824/69/19 of February 13, 2020 on the application of Jurginsky Mashzavod LLC on the enforcing of the decision of the Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation on debt collection from PJSC Pokrovske Mine Management. These decisions were assessed as a negative case law that does not contribute to the development of arbitration in Ukraine. It was concluded that in cases No. 824/26/19 and No. 824/69/19 the Supreme Court formulated two extremely negative opinions for the development of international commercial arbitration: 1) the need to inform the different jurisdictions parties of the arbitration proceedings, where in these jurisdictions the Hague Convention is binding, in form of provision of international legal assistance, which would harm the pace of arbitration proceedings; 2) the necessity to notify the parties by arbitration via mail with a postal description of the enclosed documents. The provisions of the Hague Convention regarding the requirement of arbitration notifications of the parties on the implementation of arbitration proceedings using the procedure of international legal assistance were analysed. It was established that the provisions of this convention cannot be interpreted as establishing an obligation for arbitration tribunals to notify the parties of the arbitration proceedings, which are situated in states-parties to this convention, through the procedure of international legal assistance only. The practice of the Supreme Court in other cases on the recognition and granting permission to enforce of international commercial arbitration decisions, where the party against which the decision was made denies that it has been notified about the arbitration or appointment of an arbitrator, was positively assessed. This practice is pro-arbitration. It was emphasized the importance of forming pro-arbitration practice of the Supreme Court, which ensures the image of Ukraine as a friendly jurisdiction for arbitration and for investment accordingly.

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.

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.

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