scholarly journals “National Intervention” in International Commercial Arbitration

2019 ◽  
Vol 19 (1) ◽  
pp. 81-107
Author(s):  
Carlos A. Esplugues
Keyword(s):  
International Trade ◽  
The State ◽  
International Standards ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
State Practice

The use of international arbitration increased over the years as a result of growth in international trade. How the State intervenes in the process concerning the appointment of arbitrators, provisional measures and evidence, and in the enforcement of the judgment after arbitration, is analysed. This State practice is however, difficult to change since international arbitration operates in a structure based on differing national terms, and not on uniform international standards.

scholarly journals The Genesis of Arbitration Laws and International Commercial Arbitration

1970 ◽  
pp. 390-397
Author(s):  
Andriy Fedchyshyn
Keyword(s):  
Civil Society ◽  
The State ◽  
International Standards ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Western Democracy ◽  
Role Of The State ◽  
Special Knowledge ◽  
Degree Of Participation ◽  
First Time

The article presents the historical development of arbitration law and international commercial arbitration. Arbitration, as one of the oldest institutes of alternative litigation, has repeatedly undergone fundamental changes regarding the procedure for its appointment, forms of exercise and the very subjects of litigation. The study of the periods of historical and legal formation of arbitration and arbitration courts in the territory of modern Ukraine made it possible to identify the basic prerequisites for the creation of such institutions, to determine the role of the state and the degree of participation of civil society in this long process. The peculiarities of expert support at each of the periods of historical and legal formation of arbitration and arbitration courts in the territory of modern Ukraine are indicated. The formation of arbitral tribunals, as a form of resolution of legal conflicts, to some extent prevented the strengthening of centralized power, in particular the judiciary, the state could not coexist with a strong private jurisdiction that competed with the state judicial system. The establishment of arbitral tribunals in the territory of modern Ukraine, as a modern toolkit for the implementation of alternative forms of justice, is a consequence of the long historical and legal development of the state and society, which was in some way influenced by a set of factors such as: the over-formalization of the judiciary (which often prevented the imposition of ); Western democracy (which accelerated the government's desire to reform and legislate democratic foundations); and certainly the ongoing development of civil society. With the adoption of the Law of Ukraine “On Arbitration Courts” by the Verkhovna Rada of Ukraine on May 11, 2004, for the purpose of the correct resolution of the dispute, the procedure for conducting expert examination was clarified for the first time to clarify issues requiring the use of special knowledge by an arbitral tribunal as an institution, as an appropriate non-state independent body. . The use of alternative ways of resolving disputes is increasingly controversial in modern legal science. However, Ukraine's legal field allows alternative institutions to operate in accordance with international standards. The approaches to proving and assigning expertise in international arbitration practice vary, depending on the legal culture.

One Window into the State of Insiders’ Arbitration Scholarship

2018 ◽  
pp. 155-164
Author(s):  
Bryant G. Garth
Keyword(s):  
The State ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Multiple Functions ◽  
International Commercial Arbitration

Abstract This book, dedicated to Charles N. Brower, a prominent international arbitrator, provides a window into the field of international commercial arbitration. It is a depiction and embodiment of the state of what can be called ‘insiders’ international arbitration. It purports to be about ‘practicing virtue,’ providing keys to the actual work of international arbitrators as depicted by an important segment of them. But the scholarship of arbitrators performs multiple functions, including self-promotion, criticism of competitors from outside, unification of the field, and bolstering the legitimacy of the field, among others. The book is therefore not only about the practice of virtue as this community sees it. It is also about ‘dealing in virtue’ – seeking to maintain the market for precisely what this group has to offer.

3 Cairo

2014 ◽  
Author(s):  
Hafez Karim
Keyword(s):  
International Trade ◽  
United Nations ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Trade Law ◽  
International Trade Law ◽  
The United Nations ◽  
Model Law

This chapter evaluates the merits of Cairo as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Egypt; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that Cairo has become an attractive venue for international commercial arbitration since the promulgation of the Arbitration Act, inspired by the United Nations Commission on International Trade Law (UNCITRAL) Model Law. The Egyptian courts are generally favorable to arbitration. They exercise minimal control over awards in actions for setting aside. The desirability of Cairo as a venue for international arbitration is further enhanced by the existence and activities of the Cairo Centre, which administers proceedings at very competitive rates compared with other arbitral institutions, and regularly updates its rules to reflect best international arbitration practices. The Centre also offers all the facilities required in connection with modern arbitration proceedings.

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 Party Autonomy and Regional Harmonization of Rules in International Commercial Arbitration

2006 ◽  
Vol 67 (4) ◽  
Author(s):  
Elizabeth Shackelford
Keyword(s):  
Twentieth Century ◽  
International Trade ◽  
World Wide ◽  
Commercial Law ◽  
Commercial Arbitration ◽  
Choice Of Law ◽  
Party Autonomy ◽  
International Commercial Arbitration ◽  
Trade Law

In the last half of the twentieth century, the trend towards “world-wide harmonization of trade law” has increased steadily with the globalization of economies and the corresponding increase in transnational commerce. Throughout this period, efforts have emerged to unify and harmonize international commercial law in order to promote international trade. The two primary ways this was pursued during the twentieth century were unification of choice of-law rules and harmonization or unification of substantive rules.

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.

10 Damages in International Arbitration

2016 ◽  
Author(s):  
Salomon Claudia T
Keyword(s):  
New York ◽  
The State ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Business Opportunity ◽  
Reasonable Degree ◽  
Depth Analysis ◽  
Degree Of Certainty ◽  
Standards Of Proof ◽  
Substantive Law

This chapter addresses the implications of the substantive law of the State of New York for the proof and calculation of damages. In international commercial arbitration, the category of damages, as well as the nature of proof required, is determined by the agreement of the parties. Absent such an agreement, tribunals will be guided by the substantive law of the arbitration. And generally, for damages to be recoverable, an aggrieved party must prove that the opposing party’s conduct directly and proximately caused the claimed damages. Although an in-depth analysis of theories and standards of proof for establishing causation is beyond the scope of this chapter, the requirement that a party prove, with a reasonable degree of certainty, damages proximately caused by a respondent’s actions explains New York law’s general skepticism about anticipated lost profits for a prospective business opportunity as a class of damages.

scholarly journals Accessibility of discoursal data in critical genre analysis: international commercial arbitration practice

2010 ◽  
Vol 10 (3) ◽  
pp. 465-483 ◽  
Author(s):  
Vijay K. Bhatia
Keyword(s):  
Professional Practice ◽  
Interdisciplinary Research ◽  
Professional Practices ◽  
Genre Analysis ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Research Teams ◽  
International Commercial Arbitration ◽  
Access To Data ◽  
International Initiative

Critical genre analysis, especially targeting specific professional practices, crucially depends on the availability of discursive data from the professional practice under investigation, which is not always easily accessible. In this paper, I take up a typical example of this kind of difficulty focusing on an international initiative, in which I have been involved for the last several years, with collaboration from more than twenty research teams from as many countries. By drawing on discoursal data (narrative, documentary and interactional), it is possible to look at the motivations for interdiscursive processes and procedures. However, the so-called duty to strict confidentiality observed and practiced in international arbitration practice makes it difficult to get access to data from arbitration practice and thus to undertake such critical genre-based interdisciplinary research. In this paper, I will focus on some of the important issues involved in this study of professional practice and discuss implications of this generally assumed requirement of confidentiality, and its implications for research in and development of the institution of arbitration. I also propose alternatives to collection of data from arbitration practice to make such research possible.

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