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.

EXTRAJUDICIAL INSTITUTIONS IN RESOLUTION OF SPORTS DISPUTES

The article analyzes extrajudicial instances for resolving sports disputes, identifies their role and advantagesover courts. It is noted that in practice, sports relations cannot exist without disputes, and the latter can take placebetween athletes, on the one hand, and coaches, sports organizations, mediators, etc., on the other hand; betweenathletes (on both sides), or when an individual athlete is not a party to the dispute at all. It is established that the mostcommon disputes today are about objective judging, anti-doping, fair play.As a result of the analysis of literature sources, it was found that in all national federations of Ukraine orassociations (except the Football Federation) such specialized bodies, as a rule, do not exist. The executive bodiesof the federation are empowered to resolve disciplinary disputes, and the powers to review them on appeal arevested in higher governing bodies (for example, congresses, conferences, general meetings). This provokes situationswhere sports disputes are considered by federation leaders who do not have the appropriate legal education, or evenhave a legal education but do not have relevant experience in resolving such disputes, which negatively affects thequality of sports disputes, as often unfair decisions are made or those that contradict the regulations of internationalfederations in certain sports.The work of such an independent international arbitration body as the Court of Arbitration for Sport, which isauthorized to resolve sports or sports-related disputes, is analyzed. These disputes are divided into two groups; GroupI includes commercial disputes arising from contractual relations between professional clubs, between clubs andathletes, sports agents, disputes over the specifics of transfer activities, agreements on the transfer or distributionof television and other media rights, etc., and group II – disciplinary disputes considered by the Court of Arbitrationfor Sport as a court of the first instance or a court of appeal in the case of a dispute between national authorities.It is concluded that to protect the rights and legitimate interests of sports entities, there is an extensivesystem of national and international out-of-court bodies for resolving sports disputes. Despite this, Ukraine has anunderdeveloped system of such bodies, as only the football sphere has an effective mechanism for resolving sportsdisputes at the national level, and therefore there is a significant need to establish a Sports Arbitration Court underthe National Olympic Committee of Ukraine to protect the rights of other sports.

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.

Deepfakes in International Arbitration: How Should Tribunals Treat Video Evidence and Allegations of Technological Tampering?

Deepfakes can be described as videos of people doing and saying things that they have not done or said. Their potential use in international arbitration leads to two competing threats. Tribunals may be conscious of the difficulties in proving that a deepfake is, in fact, fake. If the ‘clear and convincing evidence’ standard of proof is applied, it may be very difficult, if not impossible, to prove that a sophisticated deepfake is fake. However, the burgeoning awareness of deepfakes may render tribunals less inclined to believe what they see on video even in circumstances in which the video before it is real. This may encourage parties to seek to deny legitimate video evidence as a deepfake. The ‘balance of probabilities’ standard, while not perfect, would appear to address this concern. In order to properly assess deepfakes, tribunals should apply this standard while assessing both technical and circumstantial evidence holistically.

Fransız Milletlerarası Tahkim Kanunu’nun İncelenmesi

International arbitration notion contains to be commercial and to be international together, different from national arbitration notion. To be international criterion is to the fullest extent arranged in old French CPC art. 1492, which contains also French Arbitration Code. According to this article which is protected by 13 January 2011 reform; arbitration which is about international commercial benefit is an international arbitration. In 1992 French Arbitration Commitee prepared a report with the name of “Perspectives for İmprovement of French Arbitration Law”. The amendements of the directive of 13 January 2011 is neither a revolution nor an easy make up but it is a real reform which can be known as by the words clarity, definiteness, flexibility, freedom of choice, effectuality and speediness. The reform of 2011 did not changed the liberal structure of the French international arbitration law which is stand by freedom of contract and limited only by public policy. Keywords: France, International Arbitration, Freedom of Choice, Public Policy, Liberal