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.

ODREĐIVANJE VISINE NAKNADE ŠTETE U MEĐUNARODNOJ INVESTICIJSKOJ ARBITRAŽI S OBZIROM NA UTVRĐENU POVREDU I METODU IZRAČUNA

International investment arbitration as an alternative dispute resolution mechanism for resolving disputes between foreign investors and host states is also a favourite dispute resolution for investors. It consist of three parts, all of which can be resolved separately. These are jurisdiction, merits and damages. Consequently, it is possible for a tribunal to render one, two or even three arbitral awards, depending on the tribunal decision to bifurcate/trifurcate the proceedings or not. This shows the complexity of each of the stages of the arbitration proceeding. The paper deals with the issue of reparation, specifically compensation for damage caused as the main form of reparation for damage. It gives an overview of the legal issues affecting the amount of awarded damages, the main methods for calculating damages, as well as the applicable case-law and statistics in relation to the legal issues and calculating methods. The paper argues that only a proactive and inclusive approach in respect to determining damages including a detailed fact analysis for legal qualification of the dispute and determination of the best damages assessment methods, can give satisfactory results.

Mitchell v. Democratic Republic of the Congo

85Jurisdiction — Investment — Professional services — ICSID Convention, Article 25(1) — Whether legal services qualified as an investment — Whether a contribution to the economic development of the host State was required for there to be an investmentExpropriation — Measures tantamount to expropriation — Whether international law or national law was applied to determine whether an expropriation had occurred under the BIT — Whether measures resulting in the total loss of clients may constitute measures tantamount to expropriationRemedies — Damages — Expropriation — Fair market value — Capitalised earnings approach — Whether the investor was entitled to compensation based on a projection into the future of income from the previous years — Whether the investor was entitled to compensation including projected income on accounts held outside the host State — Whether the capitalisation rate was appropriate to the economic and political circumstances of the host State — Whether the period of future compensation reflected the claimant’s inability to return to the host StateCounterclaim — Nuisance — Reputational damage — Whether the host State was entitled to reputational damages resulting from an investment treaty claimAnnulment — Stay of enforcement — ICSID Convention, Article 52(5) — Whether potential difficulties for the State in recouping the amount of the Award in case of annulment were likely — Whether other State budgetary priorities are a relevant factor in deciding whether to grant a stay — Whether the lack of urgency of recovery of the award by an investor was a relevant factor in deciding whether to grant a stay — Whether the seriousness of the grounds invoked in the annulment proceedings is a relevant factor in deciding whether to grant a stayAnnulment — Stay of enforcement — ICSID Convention, Article 52(5) — Whether the posting of a bank guarantee in the amount of the award was a condition for a stay of enforcement — Whether the principle that the State was obliged to comply with its international obligations is a sufficient basis for deciding whether to require the posting of a guarantee as a condition for a stay of enforcement — Whether the State needed to prove that the posting of a guarantee would be a significant burden to avoid being required to post a guaranteeAnnulment — Manifest excess of powers — ICSID Convention, Article 52(1)(b) — Whether the tribunal exceeded its powers in accepting jurisdiction ratione materiae over professional services — Whether the tribunal exceeded its powers by failing to apply a provision of the BIT that was not specifically adduced in the arbitration proceeding86Annulment — Investment — Professional services — ICSID Convention, Article 25(1) — Salini test — Whether the existence of a contribution to the economic development of the host State was an essential characteristic of an investmentAnnulment — ICSID Convention, Article 52(1)(e) — Whether the tribunal failed to state reasons in accepting jurisdiction ratione materiae over professional services — Whether the tribunal failed to state reasons with respect to its failure to apply certain provisions of the BIT that were not adduced in the arbitration proceeding — Whether the tribunal failed to state reasons with respect to the calculation of the compensation due to the claimant

The Fundamentals of Arbitration

Used for hundreds of years and adapted to a variety of contexts, arbitration is a form of adjudicative dispute settlement where parties consent to selecting third-party neutrals that resolve a specific dispute by applying the applicable law to the facts. Part of arbitration’s success involves its flexibility in adapting procedures and selecting applicable law to meet parties’ unique needs, including having some control over the appointment of an arbitrator who may have unique substantive expertise. Parties may agree to arbitration hoping to avoid the time-consuming, expensive, and complex process of litigation by streamlining or tailoring dispute mechanics. Yet, it is not empirically verifiable that arbitration always saves time and costs, as assessing relative savings requires comparison to a national court and there are over 190 national judiciaries to which arbitration could be compared, as well as nonadjudicative forms of dispute resolution like direct negotiation and mediation. As parties inevitably negotiate in the “shadow of the law,” arbitration aids the assessment of conflict management options; and, particularly internationally, arbitration remains a powerful tool that incentivizes voluntary compliance with awards and streamlines enforcement. Despite the availability of many types of arbitration with different policy considerations, the parties’ consent to it and their agreement to arbitrate (including the applicable law) is the backbone of this form of dispute settlement. Arbitration agreements require parties to make core choices, such as deciding on the scope of agreements submitted to arbitration, the legal place of arbitration, and applicable rules. Such an agreement then provides the framework for fundamental elements of the proceedings, namely, the basis of the tribunal’s jurisdiction and power over the dispute, the standards for appointing arbitrators, the structure and rules of the proceedings, and the content and form of derivative awards. Having a valid arbitration agreement (and an arbitration proceeding conducted in accordance with those legal obligations) also influences whether courts at the place of arbitration will set the award aside and whether courts at a place of enforcement will recognize and enforce an arbitration award. In the modern era, arbitration will continue evolving to address concerns about local policy considerations (particularly in national arbitration), confidentiality and ethics, technology and cybersecurity, diversity and inclusion, and to ensure arbitration is an ongoing value proposition.

Linguistic Challenges to International Commercial Arbitration in Poland

In the realm of Polish law, arbitration is anything but a new concept. In an ever-developing economy, arbitration has become a useful tool in resolving disputes that are commercial in nature. The issue pertinent to the choice of language in an arbitral proceeding has been thoroughly investigated in the doctrine of international arbitration, yet the conclusions are not set in stone and are likely to change and evolve over time. As evidenced by the technological revolution, introduction of mechanical translations, and artificial intelligence (“AI”) it may seem that the challenges will be difficult to predict. Alternatively, the status quo of the English language as the number one language in the arbitral proceedings will remain. The parties can easily dismiss the linguistic and interpretative problems surrounding arbitration agreements. Thus, this article endeavors to consider the possible implications of a case scenario, wherein a party would attempt to arbitrate an international dispute with a Polish party on the basis of a contract that would be in a language that differs from Polish. Additionally, attention is drawn to the role of witnesses in an arbitration proceeding as such witnesses may speak languages that are the same, similar, or entirely different to the language spoken by the parties involved in the arbitration, as well as differ from the primary language of the arbiters. This article examines the aforementioned hypothetical case-scenario with the emphasis on relevant Polish acts of law. The research presented in this article is also focused on the examination of regulations vested in the statute of the most prominent Arbitration Court in Poland, and its provisions pertinent to language.

Decision-Maker and Context Effects in Employment Arbitration

Using a novel survey of 274 employment arbitrators, this study investigates how decision-maker characteristics and the context of the arbitration proceeding affect employee outcomes. The authors analyze the predictors of settlement before an arbitrator award and, if no settlement is reached, the likelihood that an employee will receive a favorable verdict after a full hearing. Findings show that pre-arbitration dispute resolution procedures, such as mediation, have significant effects on settlement behavior and employee outcomes. The characteristics of the presiding arbitrator as well as the structure of the arbitration proceeding also influence employee outcomes at trial. This study contributes to the existing literature by describing the characteristics of employment arbitrators—an underexplored actor in industrial relations. In addition, it analyzes case outcomes, including settlements, across multiple arbitration forums and with more rigorous controls than those applied in existing data sets.

LEGAL PROTECTION AGAINST THE FAILURE TO COMPENSATE ON INTERNATIONAL INVESTMENT DISPUTE

A dispute between two or more countries involved in a foreign investment may arises<br />from investment agreement agreed upon by the parties. If one of the parties breaches<br />the agreement, the parties will automatically agree to resolve the dispute to the agreed<br />arbitration forum based on the dispute settlement clause on the agreement, those<br />forum such as the ICSID arbitration. Therefore, the existence of dispute settlement<br />clause on an investment agreement (Bilateral Investment Treaty) is very necessary.<br />The result of the above-mentioned arbitration proceeding is a binding and final<br />decision for the parties. An arbitral award, should contain relief or compensation<br />set by the arbitrator as the result of the proceeding. The reliefs are given as orders to<br />indemnify the damages obtained by Claimant. Issues arises when Respondent has been<br />proven to have done detrimental damage to the Claimant yet Respondent deliberately<br />neglected his/her obligation to compensate Claimant accordingly based on the relief/<br />compensation specified in the award. The non-compliance of the Respondent to<br />fulfill the compensation obligation is due to the fact that the party habitually assume<br />that the arbitration award does not have the legal force equivalent to the decision<br />of general court, even though the nature of the award is final and binding. Thus the<br />interests and rights of the Applicant who has been declared entitled to compensation<br />based on the arbitration award must be protected so that their rights can be fulfilled<br />according to the law.

La orden de embargo preventivo extraterritorial en Derecho inglés = Worldwide freezing orders under English Law

Resumen: La orden de embargo preventivo extraterritorial proyecta sus efectos fuera de la jurisdic­ción del Estado cuya autoridad las dicta estableciendo una prohibición de disposición de activos a nivel mundial. Como puede advertirse, son medidas que pueden resultar de gran utilidad en el aseguramiento cautelar en procedimientos transfronterizos. Este tipo de medidas propias de los sistemas “common law”, por general desconocidas en los ordenamientos continentales, pueden plantear ciertos problemas a la hora de su ejecución en terceros Estados. El estudio tiene por objeto analizar este tipo de protección cautelar bajo Derecho inglés. En concreto aborda su origen y la evolución, los principios generales para su adopción, el procedimiento, la posible extraterritorialidad de sus efectos y las implicaciones que la orden puede tener sobre derechos de terceros. Finalmente, se expondrán una serie de conclusiones sobre la eficacia de este tipo de medidas.Palabras clave: embargo preventivo, extraterritorialidad, distracción de activos, ejecución.Abstract: The effects of a worldwide freezing order go beyond the territorial jurisdiction of the court that grants it by restraining a party from disposing of or dealing with assets on a worldwide basis. These measures can prove very useful in an international litigation or arbitration proceeding. This type of relief is often granted in certain common law jurisdictions yet is unknown to most continental legal systems and its enforcement by local courts can pose certain challenges. The paper analyses this protec­tive measure under English law. In particular, it examines the origin and development of this injuction, the applicable principles, its extra-territorial effects and third party’s rights. Finally, the paper draws some conclusions as to the effectiveness of such relief.Keywords: freezing order, extra-territorial scope, asset dissipation, enforcement.

Part II Commentary on the International Expedited Rules, 43 Articles E-7 to E-9—The Proceedings Under the Expedited Procedures

This chapter looks at Articles E-7 through E-9 of the ICDR Rules, which set out some basic procedural guidance for an arbitration proceeding the Expedited Procedures once the case has been transferred to the sole arbitrator. These articles grant the arbitrator with discretion to set the procedure and timetable for the arbitration. Unlike the comparable provisions in the main ICDR Rules, however, this provisions presume certain limitations on the procedure to promote the efficiency goals of the Expedited Procedures. Perhaps most notable is the presumption that an expedited arbitration will be decided on documents only, without an oral hearing. Other limitations include time limits on certain procedural benchmarks, such as the issuance of a procedural order, completion of written submissions, and time for an oral hearing, where necessary.

Part I Commentary on the ICDR International Rules, 16 Article 16—Party Representation

This chapter examines Article 16 of the ICDR Rules. Although some jurisdictions have traditionally placed restrictions on who can appear on behalf of the parties in an arbitration proceeding conducted on its territory, there is a clear trend in international arbitration towards allowing the parties freely to choose a representative as they deem appropriate, whether that be a local lawyer or foreign counsel, or someone not qualified as a lawyer at all. Article 16 does not provide express guidance as to who may or may not represent a party in arbitration. However, it does provide that each party has the right to representation and, given the liberal approach underlying modern doctrine and the ICDR Rules, this provision should be interpreted to provide each party with the freedom to select a representative of its choosing, whether that is a lawyer or a non-lawyer.