Section 44 of the English Arbitration Act 1996 and third parties to arbitration

2020 ◽  
Author(s):  
George Burn ◽  
Kevin Cheung
Keyword(s):  
Third Parties ◽  
Judicial Interpretation ◽  
National Courts ◽  
Interim Measures ◽  
Court Of Appeal

Abstract Court-ordered interim measures serve to reinforce and support tribunals’ jurisdiction and powers. Practitioners have long understood that national courts can and should apply this supportive jurisdiction against third parties to arbitration over whom most tribunals lack power. However, since 2014, English courts have held, in a series of first instance decisions, that their powers under section 44 of the English Arbitration Act 1996 are not exercisable against third parties to arbitration. Save for one of the powers under section 44, which the Court of Appeal has recently held to be applicable to third parties, this judicial interpretation that section 44 is not applicable to third parties remains in place. The authors argue that this judicial interpretation of section 44 runs contrary to its underlying purpose and the role of the courts in arbitration, and leaves a gap in a regime known for its supportive attitude vis-à-vis arbitration.

Emergency Arbitrator: Indian Prospects

LAW REVIEW ◽  
2018 ◽  
Vol 38 (1) ◽  
Author(s):  
Dr. Ashish Kumar Srivastava
Keyword(s):  
Dispute Resolution ◽  
Third Parties ◽  
Real Problem ◽  
Anglo Saxon ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
High Courts ◽  
Interim Measures ◽  
Indian Perspective

International commercial arbitration is one of the most favourite mode of dispute resolution in world for resolving commercial disputes. Speed and cost are two important features what makes arbitrationa sought-after mode for dispute resolution because in conventional dispute resolution by courts ‘Remedy becomes worse than malady’ due to delay and cost. Legalism and authoritative courts in Anglo Saxon societies make the justice dilatory and expensive which is termed analogically as a disease of ‘Adversariasis’. Judicial minimalism is encouraged by entrepreneurs and business class of world which results in enhanced thrust on international commercial arbitration. In any arbitration interim measures are sine quo non. The irreparable loss and balance of convenience demands intervention by authoritative body to order and issue processes which can binds parties and third parties. In such cases unless interim measures are sought by municipal national courts no effective and binding interim remedies can be granted to the parties and third parties. The arbitrator once appointed is competent enough to grant interim measures and it can also decide about its jurisdiction based on doctrine of Kompetenz-Kompetenz. However, if before the appointment of arbitrator, the need of urgent interim measures arises then obviously parties have to go to the municipal national courts but this judicial intervention is not the intent of parties as they are seeking judicial minimalism. In such situations the urgent interim measures can be granted by emergency arbitrator. The Arbitration and Conciliation Act, 1996 is silent about emergency arbitrator but Delhi and Bombay High Courts have given some pragmatic judgments, making the provision of emergency arbitrator, a reality. The real problem in emergency arbitrator is how one can grant interim relief even without being in existence i.e. when arbitrator itself is non est. ICC, SIAC and LCIA provide for emergency arbitrator. In this paper the author has tried to make an analytical and comparative overview of emergency arbitrator in Indian Perspective.

7 Role of National Courts during the Proceedings

2015 ◽  
Author(s):  
Blackaby Nigel ◽  
Partasides Constantine ◽  
Redfern Alan ◽  
Hunter Martin
Keyword(s):  
National Court ◽  
Status Quo ◽  
Arbitral Tribunal ◽  
Judicial Control ◽  
National Courts ◽  
The Status ◽  
Model Law ◽  
Interim Measures

This chapter examines the role that national courts play at the beginning, during, and end of arbitration proceedings. Arbitration is dependent on the support of the courts, which alone have the power to intercede when one party seeks to sabotage proceedings. This intervention may be possible at the beginning of the arbitral process in the context of the enforcement of the arbitration agreement, the establishment of the tribunal, and challenges to jurisdiction. National courts may also intervene during proceedings: it may be necessary for the arbitral tribunal or a national court to issue orders intended to preserve evidence, to protect assets, or in some other way to maintain the status quo pending the outcome of the arbitration. Under the UNCITRAL Rules and Model Law, such orders are called ‘interim measures’. The chapter also describes how national courts exercise judicial control over the resulting award.

Part IV Procedures before the Commission, 1 The Administrative Procedure—the Privileged Dialogue

2016 ◽  
Author(s):  
Kreuschitz Viktor ◽  
Nehl Hanns Peter
Keyword(s):  
Preliminary Investigation ◽  
State Aid ◽  
Third Parties ◽  
Administrative Procedure ◽  
National Courts ◽  
Administrative Procedures ◽  
The One ◽  
Two Stages ◽  
Source Of Information

This chapter addresses a number of key principles that form the basis of the European Commission's administrative procedures in relation to State aid investigations. The administrative procedure before the Commission is divided into two stages: the preliminary investigation and the full or formal investigation. Both stages of a State aid investigation are conducted essentially as a privileged if not exclusive dialogue between the Member State concerned and the Commission. As such, the role of third parties in State aid investigations is limited to that of a source of information; this has not changed with the recent reforms introduced as part of the Commission's State Aid Modernization (SAM) process. The chapter then offers three possible explanations for the current situation under the following headings: the addressee factor; the dual role of the Commission and the national courts; and finally, what may be referred to as the ‘one size fits all’ approach in the Procedural Regulation.

4. The European Courts: composition, functions, jurisdiction; preliminary rulings

2021 ◽  
pp. 79-107
Author(s):  
Margot Horspool ◽  
Matthew Humphreys ◽  
Michael Wells-Greco
Keyword(s):  
Judicial Activism ◽  
Advocate General ◽  
Member States ◽  
National Courts ◽  
European Institutions ◽  
Court Of Justice ◽  
The Future ◽  
Rules Of Procedure ◽  
Interim Measures

This chapter discusses the composition, functions and jurisdiction of the European Courts. It discusses indirect actions (preliminary rulings) and direct actions, i.e. actions brought by or against the European Institutions and the Member States, and between the Member States. The Courts are the CJEU, which includes the Court of Justice, the General Court, and specialised courts. The chapter explains the role of the Advocate General (AG), and further discusses rules of procedure, judicial activism, preliminary rulings, the jurisdiction of national courts, discretionary and mandatory references, when national courts should refer, interim measures, effect of preliminary rulings, and the future of preliminary rulings. The chapter also explains the role of the EFTA Court.

EU Antitrust Procedure

2020 ◽  
Keyword(s):  
Judicial Review ◽  
Policy Making ◽  
Third Parties ◽  
Fundamental Rights ◽  
Private Enforcement ◽  
International Level ◽  
National Courts ◽  
National Competition ◽  
The Impact

This book provides a comprehensive and practically oriented account of EU competition procedure and the European Commission’s role in enforcement, coordination, and policy-making, from the perspective of EU enforcers. It explains the Commission’s approach to each aspect of enforcement: its investigatory practices and powers, interactions with parties under investigation and third parties, compliance with fundamental rights, process by which it adopts decisions, and application of sanctions and remedies for anticompetitive conduct. Publication and judicial review of Commission decisions is also be discussed. In particular, the book provides a complete view of the Commission’s role in enforcement and coordination at the international level. Following the implementation of the Damages Directive, the book examines cooperation between the Commission and national courts, with regard to the increasing role of private enforcement actions. It emphasises the importance of cooperation between the Commission and national competition authorities (NCAs) of the Member States and consider the impact of the forthcoming Directive on empowerment of NCAs (‘ECN+’), as well as the Commission’s engagement with NCAs in third countries and the instruments which facilitate this.

Features of Copyright and Related Rights Defense on the Internet: Scientific Discussion at a Seminar in the First Court of Appeal

2020 ◽  
Vol 7 ◽  
pp. 94-100
Author(s):  
N. V. Buzova ◽  
◽  
M. M. Karelina ◽  
Keyword(s):  
Copyright Protection ◽  
The Internet ◽  
Judicial Reform ◽  
Scientific Discussion ◽  
Rights Protection ◽  
Moscow City ◽  
Interim Measures ◽  
Judicial Protection ◽  
Appeal Courts ◽  
Court Of Appeal

The final stage of the judicial reform was the creation of new cassation and appeal courts in the system of courts of general jurisdiction that provide additional guarantees for the effective judicial protection of citizens. Russian legislation establishes a mechanism for the protection of infringed copyright and related rights on the Internet. Such a mechanism provides for the imposition of interim measures by the Moscow City Court and the termination by Roskomnadzor of access to the site or page of the site on the Internet, on which information is posted in violation of copyright and related rights. In the case of interim measures, the case decision belongs to competence of the Moscow City Court. As a result of changes in the legislation on the judicial system, the courts of appeal and cassation of general jurisdiction began to work. Consideration of complaints against judicial acts of the Moscow City Court, rendered by them at first instance, are referred to the competence of the new courts. The article notes the stages of development of legislation on copyright protection on the Internet, as well as some problematic aspects of copyright and related rights protection on the Internet.

National Legislatures

2018 ◽  
Author(s):  
Kevin L. Cope ◽  
Hooman Movassagh
Keyword(s):  
International Law ◽  
Common Law ◽  
Court Decisions ◽  
Domestic Court ◽  
Comparative Analyses ◽  
Judicial Decisions ◽  
National Courts ◽  
Legislative Branch ◽  
National Legislatures

One critique of some common-law comparative legal academies is their intensively “court-centric” focus, which, some believe, “marginalize[s]” the role of the legislative branch. The same may be said of the extant comparative international law literature: most of it concerns the interpretive approaches of national courts. In fact, one of the field’s seminal pieces characterizes comparative international law as involving “comparative analyses of various domestic court decisions.” Not surprisingly, then, nearly all of this volume’s contributions deal mostly or exclusively with courts and judicial decisions. We agree that courts can play a large part in diversifying how international law works across different systems, but we contend that the foundation of the comparative international law project lies elsewhere. We argue that among the most important and underappreciated interpretative acts—and therefore, those currently most needing study—are the international law interpretations of national legislatures.

A Typology of International Judicial Practices

2018 ◽  
Author(s):  
Jeffrey L Dunoff ◽  
Mark A Pollack
Keyword(s):  
International Law ◽  
Practice Theory ◽  
Third Parties ◽  
International Courts ◽  
Everyday Practices ◽  
The Everyday ◽  
Judicial Opinions

This chapter discusses the inner working of ICs, such as the drafting of judicial opinions; practices concerning separate opinions; the role of language and translation; and the roles of third parties. It also presents a preliminary effort to identify and examine the everyday practices of international judges. In undertaking this task, the authors draw selectively upon a large literature on ‘practice theory’ that has only rarely been applied to international law in general or to international courts in particular. A typology and synoptic overview of practices is presented.

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