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 Three Ages of International Commercial Arbitration

Drawing on a wide range of previously unpublished sources, this unique history of international commercial arbitration in the modern era identifies three periods in its development: the Age of Aspirations (c. 1780–1920), the Age of Institutionalization (1920s–1950s), and the Age of Autonomy (1950s–present). Mikaël Schinazi analyzes the key features of each period, arguing that the history of international commercial arbitration has oscillated between moments of renewal and anxiety. During periods of renewal, new approaches, instruments, and institutions were developed to carry international commercial arbitration forward. These developments were then reined in during periods of anxiety, for fear that international arbitration might be overstepping its bounds. The resulting tension between renewal and anxiety is a key thread running through the evolution of international commercial arbitration. This book fills a key gap in the scholarship for anyone interested in the fields of international arbitration, legal history, and international law.

Between rags and riches: rethinking security for costs in international commercial arbitration

This article assesses the traditional approach adopted to making an order of security for costs in international arbitration, which focuses almost exclusively on the financial standing of the claimant. The article argues that this approach is inappropriate, and has the potential to undermine the purpose of the remedy itself; namely, to protect a respondent who has been dragged into an arbitration against his will, and may subsequently struggle to enforce a costs award against the claimant if he is successful in due course. The author therefore argues that the financial position of the respondent—and the impact of the proceedings on that respondent—should be hardwired into the assessment undertaken by arbitral tribunals when considering whether to order the claimant to provide security for the respondent’s costs.

The arbitrability of investor-state taxation disputes in international commercial arbitration

<p>Despite the expanding scope of arbitrability in recent times, the arbitrability of tax disputes remains an unsettled issue. While it has been a hotly discussed topic in the field of international investment arbitration, it also warrants attention in the context of international commercial arbitration. In particular, the arbitrability of investor-state taxation disputes in this area raises a number of challenging issues. Accordingly, this article provides an in depth examination of the arbitrability of investor-state taxation disputes in international commercial arbitration. It concludes that traditional concerns regarding the arbitrability of tax disputes do not, in principle, support the inarbitrability of all tax disputes. Rather, there is a logical distinction to be drawn between taxation disputes that directly implicate the sovereignty of states, and disputes as to taxation that are merely contractual in nature, and only involve taxation indirectly. In reaching this conclusion, this article also yields some insights into both the question of which law should govern arbitrability and also into the nature of arbitrability more generally, in the light of the developments that have occurred in this area.</p>

The arbitrability of investor-state taxation disputes in international commercial arbitration

<p>Despite the expanding scope of arbitrability in recent times, the arbitrability of tax disputes remains an unsettled issue. While it has been a hotly discussed topic in the field of international investment arbitration, it also warrants attention in the context of international commercial arbitration. In particular, the arbitrability of investor-state taxation disputes in this area raises a number of challenging issues. Accordingly, this article provides an in depth examination of the arbitrability of investor-state taxation disputes in international commercial arbitration. It concludes that traditional concerns regarding the arbitrability of tax disputes do not, in principle, support the inarbitrability of all tax disputes. Rather, there is a logical distinction to be drawn between taxation disputes that directly implicate the sovereignty of states, and disputes as to taxation that are merely contractual in nature, and only involve taxation indirectly. In reaching this conclusion, this article also yields some insights into both the question of which law should govern arbitrability and also into the nature of arbitrability more generally, in the light of the developments that have occurred in this area.</p>

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