The Impartiality and Independence of Arbitrators in 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 Status of Crimea and the Sea of Azov as a Jurisdictional Hurdle in Ukraine v. Russia

On 21 February 2020, the arbitral tribunal constituted under Annex vii of the United Nations Convention on the Law of the Sea (unclos) in the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation) rendered its award concerning preliminary objections. This comment focuses on the arbitral tribunal’s findings concerning Russia’s two most important and far-reaching objections, both of which concern jurisdiction ratione materiae. First, it argues that the arbitral tribunal convincingly declined jurisdiction over those of Ukraine’s claims, which would have required the arbitral tribunal to decide the dispute between Ukraine and Russia concerning sovereignty over Crimea. Second, this comment analyzes the arbitral tribunal’s conclusion that the parties’ dispute concerning the status of the Sea of Azov and Kerch Strait was not of an exclusively preliminary character and must, therefore, be reserved for the proceedings on the merits.

The Legal Policy of Executability in the International Arbitral Tribunal Decision for Settlement of Investment Disputes

<div><table cellspacing="0" cellpadding="0" align="left"><tbody><tr><td align="left" valign="top"><p class="AbstractText">The growing number of investment disputes indicates more challenging and controversial matters in the various arbitration practices. However, the International Centre for the Settlement of Investment Disputes (ICSID) rules do not entirely solve the problem in the arbitration process. This study aims to explain how the ICSID tribunal’s inherent reconsideration power can be exercised to “fill the gap” in arbitration proceedings. This study concludes that it can be enforced under Article 44 of the ICSID Convention, which decides the question submitted to the tribunal that the ICSID Convention does not cover. Second, in completing this study, the wording of Rules 19 of Arbitration Rules gives an almost similar order to the tribunals in the case of absence in the conduct of proceedings. Third, under Rule 38 (2) Arbitration Rules, the tribunals can exercise the reconsideration power when discovering new facts that decisively affect the case's outcome.</p></td></tr></tbody></table></div>

The Arbitral Award in the Enrica Lexie Case and its Questionable Recognition of Functional Immunity to the Italian Marines Under Customary International Law

The dispute between Italy and India on the Enrica Lexie incident has finally been decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian marines involved in the case at hand, the majority judgment (by three votes to two) affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on State practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all State officials, and regardless of the type of functions they perform. In fact, immunity has often been recognized as applying only to certain categories of State officials, and on the basis of the governmental nature of the functions they perform on behalf of the State. Given the doubtful existence under customary international law of a clear rule establishing the functional immunity of all State officials, for all the acts performed in the exercise of their functions, this article argues that the Arbitral Tribunal should have firstly ascertained the existence of a specific customary rule on the immunity of the military abroad, together with the exact content of such rule and, secondly, whether this was applicable in the case of the Enrica Lexie. As current practice stands, military forces abroad are entitled to immunity only under specific circumstances, which do not seem to occur in the present case. In particular, this article maintains that the Italian marines were not entitled to functional immunity. While the acts they performed did indeed fall within their typical functions, they were exercised on behalf of a private subject and not on behalf of the Italian State.

Functional Immunity of the Marines on the Enrica Lexie: A Reply To Raffaella Nigro

This article is a short reply to Raffaella Nigro’s assessment of the Arbitral Tribunal award in the Enrica Lexie case. Professor Nigro analyzes the rule of functional immunity of State officials from foreign criminal jurisdiction and argues that it cannot be applied to the two marines, even supposing that military personnel are covered by such a rule. Professor Nigro bases this conclusion on the facts that the marines were stationed on a commercial vessel and were servicing the interests of the private shipowner. In reply, this author reaffirms the existence of a rule of customary international law on functional immunity and argues that military personnel assigned to commercial vessels are carrying out these duties in order to protect Italian interests and contribute to the defeat of piracy. Therefore, the marines on board the Enrica Lexie were (and still remain) under the protection of the rule on immunity from foreign criminal jurisdiction.

Punitive Damages Awards in International Arbitration: Franchising Case

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

The Third-Party Funding in Arbitration: A Challenge in Times of Crisis

Arbitration as a way of resolving disputes between companies is essentially linked to the advantages of arbitration, especially with the speed and neutrality of arbitration, as well as the confidentiality, the possibility of choosing arbitrators with precise technical knowledge in the area of litigation, among others. The parties choose arbitration as a means of resolving disputes, relating to interests of an equity nature, bearing in mind that for some legislators the emphasis is on the availability of rights, arising from the contractual relationship that unites them. The payment of costs is a sine qua non condition for the constitution of the arbitral tribunal. The parties must proceed with the payment of taxes and fees, respectively to the arbitration center they have chosen and the arbitrators they have chosen. Considering that the economic situation of the companies may fluctuate, either during the execution of the main contract, or when the dispute arises, the constitution of the arbitral tribunal and during the procedural iter, the possibility of financing the arbitration was outlined. Third-Party Funding is a figure that involves a third-party, unrelated to the litigation, who will defray the expenses due by one of the parties to the arbitration. It will have as a counterpart the participation in the eventual financial result achieved through the success of the arbitration. As a methodology, in addition to analyzing the state of the art, we will indicate real cases and the reasons for the growth of this instrument, without forgetting the ethical issues involved.

Between the Law of the Sea and Sovereign Immunity: Reflections on the Jurisdiction of the Annex VII Arbitral Tribunal in the Enrica Lexie Incident Case

The jurisdiction ratione materiae of an international court or tribunal in a particular dispute settlement system relies on a sensitive balance between the safeguard of the consensual basis of jurisdiction and the need for the effective settlement of international disputes. Thus, the scope of the jurisdiction ratione materiae of an international court or tribunal constitutes a crucial issue in international adjudication. This issue was vividly raised in the 2020 Enrica Lexie Incident arbitration between Italy and India. In this case, the arbitral tribunal constituted in accordance with Annex VII to the UN Convention on the Law of the Sea held that it had jurisdiction to decide the issue of immunity that necessarily arose as an incidental question in the application of the Convention. However, the validity of the Tribunal’s approach needs careful consideration. Therefore, this article critically examines the Arbitral Tribunal’s approach in the Enrica Lexie Incident arbitral award.

Arbitral Awards Under ISTAC Arbitration

Arbitration is a well-established and widely used method of resolution of disputes outside the state courts. There are various arbitration centers around the world. The Istanbul Arbitration Centre ISTAC is an independent, neutral and impartial institution providing efficient dispute resolution services for both international and domestic parties. The arbitral awards rendered under ISTAC Arbitration Rules are subject to enforcement by officers just as court decisions. ISTAC arbitration proceeding is carried out by The Sole Arbitrator or Arbitral Tribunal which consist of President and other arbitrators. The Sole Arbitrator or Arbitral Tribunal shall render the award on the merits of the dispute, within 6 months from the date upon which the completion of the signatures on the terms of reference. When the dispute is resolved by an Arbitral Tribunal, it shall decide by majority. In the absence of majority, the award shall be made by the President of the Arbitral Tribunal. The arbitral award contains information of parties and arbitrators, the reasoning of the award, the decision, the decision concerning the costs of the arbitration. The awards are signed by Sole Arbitrator or Arbitral Tribunal. The Sole Arbitrator or Arbitral Tribunal may correct ex officio any computational and typographical errors in the award within 30 days of the date on which the award was rendered. The arbitration proceedings are terminated by the issuance of the award or by the occurrence of any circumstances which are stipulated under ISTAC Arbitration Rules Article 3.

Part I Overview of Emergency Arbitration, 1 The Principles of Emergency Arbitration

This chapter discusses the rationale for emergency arbitration, and the fifteen core principles that are identifiable from the convergence of emergency arbitration rules. The rationale for emergency arbitration is best understood by illustrating the dilemmas which may be faced if the procedure is unavailable and a party requires urgent relief prior to the constitution of the arbitral tribunal. In the absence of emergency arbitration, a party required to resolve a dispute by arbitration and that is in need of urgent relief typically has three options to obtain it. The first option is to request the urgent measures from a national court. The second option is to commence arbitration and, subject to the parties' agreement, applicable laws, and arbitration rules, apply for the urgent measures once the tribunal is in place. The third option is to utilise other procedures, if available, to obtain urgent relief.