The Cambridge Companion to International Arbitration

2021 ◽  
Keyword(s):  
International Law ◽  
Foreign Investor ◽  
International Arbitration ◽  
General Reader ◽  
Commercial Law ◽  
Party Autonomy ◽  
State Authority ◽  
The Subject ◽  
Commercial Disputes

This Cambridge Companion explores the main senses of the term 'international arbitration'; including the arbitration of private commercial disputes, disputes between a State and a foreign investor, disputes between States and also between a State and its parts. It treats these various forms as being inter-related, if not always conceptually, then as a matter of history, rather than as collective victims of imprecise language. The book touches not only on current debates but also more foundational aspects, such as the tension between party autonomy and State authority, and the pacifist roots of modern international arbitration. Thus, it aims to offer a concise survey of the history, the main issues as well as the latest developments in a single, handy volume. It will be an invaluable introduction to the subject for students studying international arbitration, commercial law and international law, and also lawyers and the general reader.

The new Uruguayan private international law: an open door to party autonomy in international contracts

2021 ◽  
Author(s):  
Eduardo Florio de León
Keyword(s):  
International Law ◽  
General Analysis ◽  
Private International Law ◽  
State Law ◽  
Open Door ◽  
Commercial Law ◽  
Party Autonomy ◽  
Applicable Law ◽  
General Law ◽  
Contractual Obligations

Abstract On 17 November 2020, the General Law on Private International Law (Law 19.920) was approved. This Law resulted from a process of hard work that took over two decades of discussions and debates.1 With this Law, Uruguay becomes one of a group of countries that have already carried out this kind of reform, particularly in regard to international commercial law and international contracts. The new Law 19.920 allows parties to choose the applicable law (State or non-State law) to regulate their international contractual obligations. This reform has a real disruptive imprint since Uruguay leaves behind its old and anachronistic regulation of the matter. This article provides a general analysis of the regulation of international commercial law under Law 19.920 (Articles 13 and 51) and the new regime applicable to international contracts, including the parties’ right to choose the applicable law (Article 45) (State or non-State law), which increases their autonomy in comparison with the previous regime.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 14 Ethiopia: Ethiopian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Gebremeskel Fekadu Petros
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Applicable Law ◽  
The Subject ◽  
The Hague ◽  
Federal Supreme

This chapter reflects on Ethiopian perspectives on the Hague Principles. Ethiopia does not have a codified law regulating matters of private international law, nor is there detailed case law from which one could derive key principles of the subject. While the shortage of private international law in Ethiopia is evident, the problem is most severe in the area of applicable law. In relation to party autonomy in choice of law, the Federal Supreme Court’s Cassation Division has handed down some interesting decisions, and these indeed have the force of law in Ethiopia. Nevertheless, the approach of the Ethiopian courts in respect of party autonomy is not very developed and clear, including in the field of international commercial contracts. While it would be prudent for Ethiopian courts to refer to the Hague Principles as persuasive authority, this requires awareness of the existence of the Hague Principles. In the long term, the Hague Principles will surely find their way into Ethiopian law.

scholarly journals “International arbitration in investment disputes” case study of Egypt

2020 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Sabah Ahmd Farag
Keyword(s):  
International Law ◽  
Legal Framework ◽  
Investment Climate ◽  
International Arbitration ◽  
Content Type ◽  
Investment Promotion ◽  
Arbitration Process ◽  
Peaceful Settlement ◽  
The Subject

Purpose This theme will be addressed through main points: Special Nature of Investment Disputes and its methods of peaceful settlement. International legal framework governing Arbitration in investment disputes: A. Multilateral legal framework. B. Bilateral legal framework/Investment promotion and protection agreementsTypes of arbitration in investment disputes. The Egyptian experience in investment disputes arbitration. The National legal framework. Egypt on the map of investment disputes in the world. A case study. Conclusion: Results related to the legal framework regulating investment disputes in Egypt. Results related to The arbitration cases against Egypt. Design/methodology/approach The researcher investigates the subject of international arbitration in investment disputes in the framework of voluntary theory, which is based on the premise that the satisfaction of people who are addressing the international legal norm is the basis of the same rule. In other words, the basis of international law is based on the satisfaction of the State and other international legal persons Both, and then express or implied consent. Findings Despite the availability of domestic and regional arbitration mechanisms in Egypt represented by a large number of cases. Research limitations/implications The theme for the study primarily on Egypt and the international arbitration of investment disputes, through theoretical and practical study of disputes arbitration which Egypt is a party defendant in which to focus on what was issued in which the provisions of the International Center for Settlement of Investment Disputes, in an attempt to find out the reasons for the verdicts image released it, where it came mostly against Egypt, and whether these judgments against them in investment disputes due to reasons related to the legal framework of the arbitration process, or for reasons of bodies of arbitration issued by those provisions, or to the defense, which represents the Egyptian party, or to the circumstances Economic and political (which represents the investment climate). Originality/value The proposed solutions to improve the conditions and factors surrounding the arbitration disputes that Egypt is waging against foreign investors, whether they are initially alleged or accused of drafting agreements and contracts, through amending the relevant legislation and laws, selecting arbitration bodies and defense bodies.

Part I General Principles, 3 International Law as it Affects Private Law Conventions Governing Cross-Border Commercial Transactions

2015 ◽  
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Commercial Law ◽  
Typical Structure ◽  
The Public ◽  
State Security ◽  
The Subject ◽  
The Relationship ◽  
Domestic Law

Chapter 3, after describing general principles of international law and the relationship between international law and domestic law, focuses on the hitherto neglected subject of private commercial law conventions. Textbooks on international law invariably focus on public law treaties. By contrast this chapter addresses issues relating to private law conventions. It goes through the typical structure of a private law convention, the interpretation of conventions and the treatment of errors, and the enforcement of private conventional rights against States. The subject of private law conventions and public law has become of increasing importance with the appearance in several private law instruments of provisions of a public law nature designed, for example, to ensure that creditors’ rights are not enforced in a manner that adversely affects the public interest or State security. Reservations and declarations are also discussed, together with the subject of conflicts between conventions.

The ‘Judicialization’ of International Commercial Arbitration: Pitfall or Virtue?

2017 ◽  
Vol 30 (2) ◽  
pp. 405-434 ◽  
Author(s):  
LEON TRAKMAN ◽  
HUGH MONTGOMERY
Keyword(s):  
Best Practice ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Party Autonomy ◽  
International Commercial Arbitration ◽  
Global Concern ◽  
Contextual Assessment ◽  
Law And Justice ◽  
The Cost ◽  
Commercial Disputes

AbstractThis article critiques the global concern that international commercial arbitration (ICA) is becoming increasingly ‘judicialized’, addressing the growing sentiment in ICA that arbitral proceedings are too lengthy, expensive, and complex. Assuming a contrarian perspective, it argues that attempts to address the cost and length of arbitration proceedings ought not to undermine the value of finely reasoned arbitral decisions grounded in law and justice. It also argues for a contextual assessment of ICA that extends beyond the debate over ‘judicialization’.Using global illustrations and ICA developments in Australia as an initial guide, this article suggests that balancing party autonomy, accountability, efficiency,andfairness in ICA can help resolve these growing criticisms of ‘judicialization’. Ultimately, the reform of international arbitration should take place within a framework of ‘international best practice’ that is both analytical in nature and functional in operation. As such, ICA should not only be affordable and expeditious, it should serve as a legitimate and effective method of resolving international commercial disputes. In addition, it should balance the virtue of transparent proceedings against the need to respect the confidences of the parties.

scholarly journals RECENT DEVELOPMENTS AND CURRENT TRENDS ON BRAZILIAN PRIVATE INTERNATIONAL LAW CONCERNING INTERNATIONAL CONTRACTS

2018 ◽  
Vol 1 (1) ◽  
pp. 73-83
Author(s):  
Nádia de Araújo ◽  
Fabiola I. Guedes de C. Saldanha
Keyword(s):  
International Law ◽  
Legal Order ◽  
Private International Law ◽  
International Arbitration ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Current Trends ◽  
Recent Developments ◽  
International Sale Of Goods ◽  
The Government

This work aims to present the recent changes and the current trends of Brazilian Private International Law in the area of international contracts with especial focus on the enforcement of Convention on the International Sale of Goods (CISG) in Brazilian legal order. Historically, the recognition of party autonomy in Private International Law has not been uniformily recognized. While since 1996, with the enforcement of the new Arbitration Law, party autonomy has been increasingly accepted in terms of international arbitration, jurisprudence on the choice of law and the choice of court clauses does not show the same progress. In fact, despite of important documents which have already been signed by the government, Brazilian Private International Law of Contracts still dates from 1942. Such contrast with internal material law represents a challenge for the full recognition of Party Autonmy in Brazilian Private International Law.

International Approaches as Plausible Solutions to Resolve the Battle of Forms under the Indian Law of Contract

2019 ◽  
Vol 8 (1) ◽  
pp. 1-26
Author(s):  
Saloni Khanderia
Keyword(s):  
International Law ◽  
Private International Law ◽  
Bad Faith ◽  
Substantial Evidence ◽  
Choice Of Law ◽  
Party Autonomy ◽  
The Subject ◽  
The Hague ◽  
Indian Law ◽  
Standard Terms

The Indian court’s rigid application of the last-shot rule to resolve the problem of the battle of forms among conflicting standard terms in domestic disputes has resulted in unreasonableness and has fostered the conclusion of contracts in bad faith. Likewise, although there is substantial evidence to prove the existence of party autonomy in the choice of law and jurisdiction under Indian private international law, its courts have failed to delineate a coherent solution for “battles” arising on these aspects. The paper thus examines the plausibility of employing the solutions prescribed by the unidroit’s Principles on International Commercial Contracts and the Hague Conference on Private International Law’s Hague Principles on Choice of Law in International Commercial Contracts on the subject, as gap-fillers to interpret, supplement or develop the Indian national and private international law.

scholarly journals RECENT DEVELOPMENTS AND CURRENT TRENDS ON BRAZILIAN PRIVATE INTERNATIONAL LAW CONCERNING INTERNATIONAL CONTRACTS

2018 ◽  
Vol 1 (1) ◽  
pp. 73-83
Author(s):  
Nádia de Araújo ◽  
Fabiola I. Guedes de C. Saldanha
Keyword(s):  
International Law ◽  
Legal Order ◽  
Private International Law ◽  
International Arbitration ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Current Trends ◽  
Recent Developments ◽  
International Sale Of Goods ◽  
The Government

This work aims to present the recent changes and the current trends of Brazilian Private International Law in the area of international contracts with especial focus on the enforcement of Convention on the International Sale of Goods (CISG) in Brazilian legal order. Historically, the recognition of party autonomy in Private International Law has not been uniformily recognized. While since 1996, with the enforcement of the new Arbitration Law, party autonomy has been increasingly accepted in terms of international arbitration, jurisprudence on the choice of law and the choice of court clauses does not show the same progress. In fact, despite of important documents which have already been signed by the government, Brazilian Private International Law of Contracts still dates from 1942. Such contrast with internal material law represents a challenge for the full recognition of Party Autonmy in Brazilian Private International Law.

scholarly journals RECENT DEVELOPMENTS AND CURRENT TRENDS ON BRAZILIAN PRIVATE INTERNATIONAL LAW CONCERNING INTERNATIONAL CONTRACTS

2018 ◽  
Vol 1 (1) ◽  
pp. 73-83
Author(s):  
Nádia de Araújo ◽  
Fabiola I. Guedes de C. Saldanha
Keyword(s):  
International Law ◽  
Legal Order ◽  
Private International Law ◽  
International Arbitration ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Current Trends ◽  
Recent Developments ◽  
International Sale Of Goods ◽  
The Government

This work aims to present the recent changes and the current trends of Brazilian Private International Law in the area of international contracts with especial focus on the enforcement of Convention on the International Sale of Goods (CISG) in Brazilian legal order. Historically, the recognition of party autonomy in Private International Law has not been uniformily recognized. While since 1996, with the enforcement of the new Arbitration Law, party autonomy has been increasingly accepted in terms of international arbitration, jurisprudence on the choice of law and the choice of court clauses does not show the same progress. In fact, despite of important documents which have already been signed by the government, Brazilian Private International Law of Contracts still dates from 1942. Such contrast with internal material law represents a challenge for the full recognition of Party Autonmy in Brazilian Private International Law.

ISLAMIC COMMERCIAL LAW

1997 ◽  
Vol 14 (3) ◽  
pp. 17-37
Author(s):  
Mohammad Hashim Kamali
Keyword(s):  
Risk Reduction ◽  
Basic Question ◽  
Depth Information ◽  
Commercial Law ◽  
Other Hand ◽  
Legal Perspective ◽  
Financial Speculation ◽  
The Subject ◽  
Options Trading

This essay is presented in two sections. Section one is devoted to amarket analysis of options, and section two to a Shari'ah perspective onoptions trading. There is no real shortage of information in the operationalprocedures of options and the various ways in which options areutilized as trading vehicles and hedging and risk-reduction devices. Onthe other hand, there is a shortage of in-depth information analyzingoptions trading from the perspective of the Shari'ah. The second part ofthis essay is tentative, in part because certain aspects of the issue needfurther development and research. The literature on the subject is in itsearly stages and has not reached a stage where consensus on issues canbe identified. This is borne out perhaps by the divided opinion that wehave at present over the basic question of the validity or nonvalidity ofoptions from an Islamic legal perspective. I shall review these twoopposing currents of opinion in due course. Suffice it here to note thatthis presentation does not seek to advocate the validity of those varietiesof options which either directly or indirectly proceed on the charging offixed interest to accounts. This may be said to be one of the distinctivefeatures of the Shari'ah perspective on options-just as it is of all varietiesof commercial transactions in Islamic law.My review of the mechanics of options trading in the first section ofthis essay broadly indicates that options trading does not proceed oncharging of fixed interest, nor does it involve unwarranted risk takingand uncertainty (gharur). Options trading has a logic of its own, whichis dominated by the idea of risk reduction and hedging against excessivelylarge positions in its underlying assets. From the perspective ofIslamic law this aspect of options is attractive and hence, from this perspectiveI make the case for the legality of options. I may also add herein passing that options trading cannot be equated with gambling or overindulgencein financial speculation. as it is basically designed to ...

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