Emergency Arbitration: Mere Innovation or Vast Improvement

2019 ◽  
Vol 35 (4) ◽  
pp. 441-472
Author(s):  
Rania Alnaber
Keyword(s):  
New York ◽  
Arbitral Tribunal ◽  
Commercial Arbitration ◽  
National Courts ◽  
Investment Arbitration ◽  
The Future ◽  
New York Convention ◽  
Interim Measures ◽  
Specific Concern

Abstract Effectiveness of emergency arbitration is a disputable question, which was touched by several commentators since it was first introduced in 2006. Concerns have been raised in relation to the enforceability of emergency reliefs under the New York Convention and the risk of concurrent jurisdiction between emergency arbitrators and national courts in granting interim measures prior to the constitution of the arbitral tribunal. A more specific concern is related to the suitability of introducing this mechanism, to investment arbitration. This article argues that adopting an international instrument for enforcing emergency reliefs will be the best solution. As for investment arbitration, emergency arbitrators are no less important in this type of arbitration than in commercial arbitration. However, certain features of emergency arbitration shall be tailored to meet the distinct nature of investment cases. Although certain amendments are needed to enhance the effectiveness of this relatively new mechanism, the future of emergency arbitrator is still optimistic. Therefore, to avoid any duplication of fora, courts are expected to respect emergency arbitrator's jurisdiction and only intervene when the latter is not capable of granting a relief.

Understanding Public Policy as an Exception to the Enforcement of Foreign Arbitral Awards

2015 ◽  
Vol 2 (4) ◽  
pp. 316-350
Author(s):  
Wasiq Abass Dar
Keyword(s):  
Public Policy ◽  
New York ◽  
Special Focus ◽  
Commercial Arbitration ◽  
National Courts ◽  
Or Practice ◽  
Wide Definition ◽  
Model Law ◽  
New York Convention ◽  
Definition Of

The paper, as the title suggests, aims at understanding and exploring the doctrine of public policy as a ground for refusing enforcement of foreign arbitral awards. Public Policy is one such ground provided in the New York Convention as well as in the uncitral Model Law, which is most often invoked in the national courts to challenge or refuse the enforcement of foreign arbitral awards. What makes it more complicated is the lack of common world-wide definition of public policy or practice on its application, as the same varies from State to State. The traces of ambiguity, subjectivity (at the hands of the courts in terms of interpretation of the concept), and unpredictability associated with the concept of public policy have at times significantly thwarted the effectiveness and efficiency of international commercial arbitration. This paper attempts to understand and explore the enigma of public policy as an exception to the enforcement of foreign arbitral awards. Apart from revisiting various scholarly works on this issue, interpretation of this concept by various judicial institutions across the globe (with special focus on India, Pakistan, Bangladesh and Sri Lanka) has been attempted, followed by a comparative analysis, to analyse its application on the ground. This paper argues and suggests that a more desirable method of interpreting public policy, i.e. narrow interpretation, is the need of the hour, keeping in consideration the growing demands of international trade and commerce.

Arbitral Jurisdiction

2020 ◽  
pp. 69-102
Author(s):  
Alex Mills
Keyword(s):  
New York ◽  
Legal Framework ◽  
Arbitral Tribunal ◽  
Arbitral Award ◽  
National Courts ◽  
Basic Source ◽  
New York Convention

This chapter examines the concept and source of arbitral jurisdiction. In the context of arbitration, the term ‘jurisdiction’ typically refers to the ‘power’ or ‘authority’ of the arbitral tribunal to decide a dispute. A decision about whether a tribunal has jurisdiction will frequently be made by the tribunal itself, but that decision is not and cannot be a source of its jurisdiction, and cannot be a definitive determination of that jurisdiction, because the authority of that decision depends on the very question under review. A degree of deference may be given to the tribunal’s determination of these questions by national courts, but self-evidently a tribunal may not confer authority on itself. Thus, the ‘power’ of a tribunal comes more indirectly from two sources. First, the cooperation of national courts, which may readily recognize and enforce arbitral awards and may also act in support of arbitration in various other ways. Second, the potential reputational consequences of non-compliance with an arbitral award, which may lead a party to comply with it voluntarily. The legal framework for arbitration applied by most national courts is set out in the New York Convention 1958, and this remains a key basic source of the standards which are applied to determine when an arbitral tribunal is considered to have jurisdiction.

Part 2 Specific Issues of Arbitration in Brazil, 11 Project Finance, PPP, and Concession Agreements

2020 ◽  
Author(s):  
Sester Peter
Keyword(s):  
New York ◽  
Public Administration ◽  
State Level ◽  
Legal Framework ◽  
Project Finance ◽  
Commercial Arbitration ◽  
The Public ◽  
Investment Arbitration ◽  
New Type ◽  
New York Convention

This chapter examines investment arbitration in Brazil. In the 1990s, the country signed a dozen Bilateral Investment Treaties (BITs). These included clauses modelled on the framework for classic investor-state-arbitration. However, these BITs were never ratified and there are no signs that this will soon change. In recent years, Brazil has entered into a new type of investment agreement with a number of emerging markets. These contracts do not provide for investor-state-arbitration, but rather a kind of conciliation or meditation mechanism on the state-to-state level, which has never been tested so far. Since 2015, however, Brazil has been heading towards a new type of investment arbitration based on Brazilian Arbitration Law (BAL) and the New York Convention (NYC). In this new type of arbitrations, the public administration will, in principle, be represented by its own state attorneys. The arbitration framework used by Brazilian public administration is modelled on the legal framework of Commercial Arbitration, though with some important modifications mainly serving the interest of public administration.

scholarly journals Review of arbitral awards for breach of natural justice: an internationalist approach

2021 ◽  
Author(s):  
◽  
Daniel Brady
Keyword(s):  
New York ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Commercial Arbitration ◽  
Natural Justice ◽  
National Courts ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention ◽  
Dispute Resolution Mechanism

<p>While international commercial arbitration is widely regarded as an alternative dispute resolution mechanism to litigation in national courts, those courts are frequently engaged in the review arbitral awards in the context of annulment as well as recognition and enforcement. A key purpose of this review is to ensure that the arbitral procedure is consistent with the fundamental principles of natural justice. These principles find their origin in the general principles of law common to civilised nations, and their application is mandated by both the New York Convention and the UNCITRAL Model Law. This paper argues that the content of these principles should be ‘internationalised’. That is, it is both appropriate and desirable that domestic courts, irrespective of the jurisdiction in which they happen to be sitting, apply the basic rules of natural justice in uniform way. It is submitted that this would not only result in a consistent and therefore reliable recognition and enforcement regime, but would also contribute to the success and increased adoption of international arbitration as a key alternative dispute resolution mechanism.</p>

scholarly journals NATIONAL COURT INTERVENTION IN ARBITRATION AS AN INVESTMENT TREATY CLAIM

2011 ◽  
Vol 60 (2) ◽  
pp. 485-498 ◽  
Author(s):  
Richard Garnett
Keyword(s):  
New York ◽  
Dispute Resolution ◽  
National Court ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
Investment Treaty ◽  
Model Law ◽  
Court Intervention ◽  
New York Convention

International commercial arbitration has long been a popular method for resolving cross-border business disputes. The opportunity for parties to choose their adjudicators and the dispute resolution procedure, the scope for privacy and the greater capacity for enforcement of awards compared to court judgments are all important reasons that parties prefer international arbitration over litigation. Reinforcing this trend in favour of international commercial arbitration has been a general consensus among national courts and legislatures that support, rather than interference, should be provided to the arbitral process. Such a philosophy is apparent, for example, in the requirements in the widely adopted New York Convention for States to recognize and enforce both foreign arbitration agreements and awards, and in international instruments such as the 1985 UNCITRAL Model Law on International Commercial Arbitration, which authorize national courts to assist, rather than intervene, in the conduct of arbitrations within their borders. Moreover, international commercial arbitration has proven to be sufficiently flexible as a dispute resolution method to be used both in disputes between private parties, and between private and State entities.

Emergency Arbitration

2021 ◽  
Author(s):  
Sim Cameron
Keyword(s):  
Arbitral Tribunal ◽  
National Courts ◽  
Investment Treaty ◽  
The Future ◽  
Interim Measures ◽  
Emergency Measures ◽  
Investment Treaty Arbitration

Emergency arbitration enables a party to seek urgent relief from an emergency arbitrator during the period required for the constitution of an arbitral tribunal. The procedure is not a substitute for expedited or summary proceedings. It simply enables a party to bypass national courts and obtain pre-tribunal relief in the form of interim measures even before an arbitral tribunal has been formed. The limited mandate of the emergency arbitrator is to determine whether the circumstances warrant urgent relief within the period required for tribunal formation. Studies have revealed that emergency arbitrators have adopted inconsistent approaches to emergency arbitration proceedings. Parties contemplating emergency arbitration are thus faced with uncertainty both as to procedure and prospects, and a lack of clarity as to how to formulate an application for emergency measures. By identifying commonalities between emergency arbitration rules, this book aims to promote greater uniformity in the practice of emergency arbitration, thereby giving parties greater control and certainty in bringing and defending applications for emergency measures. As emergency arbitration rules confer wide discretion on the emergency arbitrator, this uniformity is promoted whilst at the same time recognising, where appropriate, the need for an element of flexibility to be maintained. The book contains seven parts. Part I sets out an overview of emergency arbitration. Parts II to V move through all phases of an emergency arbitration, starting with pre-commencement considerations and ending with enforcement. Part VI is dedicated to emergency arbitration in investment treaty arbitration. Finally, in Part VII, the future of emergency arbitration is explored.

scholarly journals THE APPEAL OF INTERNATIONAL COMMERCIAL ARBITRATION AWARDS AS A FORM OF JUDICAL CONTROL BY NATIONAL COURTS

2019 ◽  
pp. 8-16
Author(s):  
S. Kravtsov
Keyword(s):  
New York ◽  
Dispute Settlement ◽  
Legal Protection ◽  
European Convention ◽  
Dispute Settlement Mechanism ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
Recognition And Enforcement ◽  
New York Convention

The appeal of the international commercial arbitration awards is a major issue in the dispute settlement mechanism for arbitration governed by multilateral conventions, bilateral treaties and national laws, as well as by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. Notwithstanding the importance of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, it restricts to a certain extent the scope of legal protection of arbitral awards, as it leaves national courts to challenge them by the way of possible annulment, and national courts when considering petitions for annulment decisions are vested in the power to revoke such decisions. In this respect, the resolution of these issues may raise the issue of the correlation between the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 and domestic legislation of the countries in which the relevant decision may be challenged. The specific of the international commercial arbitration decision is that it cannot be appealed to any higher court. However, the absence of any form of control over the arbitral award could lead to the enforcement of such decisions, which, if rendered within the judicial system, would be overturned or modified by a higher court. Therefore, there is an institution for challenging arbitral awards in national courts. Due to the fact that the arbitration award is a form of control by national courts, the regulation of this institution is defined in the legislation of each individual country, and at the international legal level only certain aspects are regulated. These are the European Convention of 1961 and the New York Convention of 1958.

scholarly journals Review of arbitral awards for breach of natural justice: an internationalist approach

2021 ◽  
Author(s):  
◽  
Daniel Brady
Keyword(s):  
New York ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Commercial Arbitration ◽  
Natural Justice ◽  
National Courts ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention ◽  
Dispute Resolution Mechanism

<p>While international commercial arbitration is widely regarded as an alternative dispute resolution mechanism to litigation in national courts, those courts are frequently engaged in the review arbitral awards in the context of annulment as well as recognition and enforcement. A key purpose of this review is to ensure that the arbitral procedure is consistent with the fundamental principles of natural justice. These principles find their origin in the general principles of law common to civilised nations, and their application is mandated by both the New York Convention and the UNCITRAL Model Law. This paper argues that the content of these principles should be ‘internationalised’. That is, it is both appropriate and desirable that domestic courts, irrespective of the jurisdiction in which they happen to be sitting, apply the basic rules of natural justice in uniform way. It is submitted that this would not only result in a consistent and therefore reliable recognition and enforcement regime, but would also contribute to the success and increased adoption of international arbitration as a key alternative dispute resolution mechanism.</p>

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