The Essential Judge: the Role of the Courts in a System of National and International Commercial Arbitration

2006 ◽  
Vol 22 (1) ◽  
pp. 73-94 ◽  
Author(s):  
M. Ball
Keyword(s):  
Commercial Arbitration ◽  
International Commercial Arbitration

Arbitrator acceptability in international commercial arbitration

2016 ◽  
Vol 27 (3) ◽  
pp. 379-397 ◽  
Author(s):  
Yongkyun Chung ◽  
Hong-Youl Ha
Keyword(s):  
Reliability And Validity ◽  
Commercial Arbitration ◽  
Content Type ◽  
International Commercial Arbitration ◽  
Analytic Process ◽  
Selection Research ◽  
The Relationship ◽  
Legal Expertise ◽  
Perceived Costs

Purpose The purpose of this paper is to identify the determinants of arbitrator acceptability and investigate whether the perceived costs of arbitration moderate the relationship between arbitrator acceptability and arbitrator characteristics in international commercial arbitration. Design/methodology/approach A two-stage analytic process is used to test the dimensionality, reliability and validity of each construct and then the proposed hypotheses. Findings The findings show that the five constructs of arbitrator characteristics – reputation, practical expertise, legal expertise, experience and procedural justice – statistically significantly explain arbitrator acceptability. Moreover, perceived cost of arbitration moderates the relationship between arbitrator acceptability and arbitrator characteristics. However, the moderating effect of perceived costs of arbitration is not equal across characteristics. Research limitations/implications Knowledge regarding potential moderators of the strength of the indicators of arbitrator acceptability will be useful to future researchers in determining which variables to study in arbitrator selection research. Practical implications Useful guidelines in the selection of an international arbitrator are proposed. Originality/value This study contributes to arbitrator acceptability literature through the suggestion of a hypothesized model of arbitrator acceptability with auxiliary hypothesis of reputation in international contexts. In addition, this study investigates the moderating role of perceived cost of arbitration on the relationship between arbitrator acceptability and arbitrator characteristics.

The Procedural Rules Governing the Production of Documentary Evidence in International Arbitration – As Applied in Practice

2009 ◽  
Vol 8 (1) ◽  
pp. 27-90
Author(s):  
Nathan O'Malley
Keyword(s):  
Judicial Review ◽  
Case Law ◽  
Documentary Evidence ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The World ◽  
The Common ◽  
Over Time

AbstractThis article considers the provisions of the IBA Rules on the Taking of Evidence in International Commercial Arbitration pertaining to documentary evidence, Articles 2, 3, and 9. The IBA Rules have emerged over time as a compromise set of standards appropriate for international arbitration and are widely used by tribunals throughout the world. This piece provides examples of arbitral case law in respect of the application of the Rules to issues concerning the taking and admission of documentary evidence. Moreover, the article also addresses issues regarding the role of the IBA Rules in the judicial review of arbitral awards, and their use in investor-state arbitration as opposed to international commercial arbitration. The goal of this article is to provide a thorough, case based commentary on the common approach used by tribunals in this area of procedure.

scholarly journals Admissibility of Lis Pendens in International Commercial Arbitration: A Comparative Insight of Different Legal Systems

2020 ◽  
Vol 13 (4) ◽  
pp. 134
Author(s):  
Ximei Wu ◽  
Abid Hussain Shah jillani
Keyword(s):  
Common Law ◽  
Effective Means ◽  
Civil Law ◽  
Deep Understanding ◽  
International Level ◽  
Legal Systems ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Domestic Level

An attempt has been made to investigate the role of the doctrine of Lis Pendens in international commercial arbitration while making a comparison of civil and common law traditions. Arbitration is regarded to be less painful and an effective means for resolving any type of commercial disputes. Sources of the law to investigate Arbitration's regulation on a national, institutional, and international level. However, it is known that the lis pendens doctrine has been rarely codified; thus, scholarly writings and case laws were consulted by the research for determining its adoption and content. It is important to note that the lis pendens is initially regarded as a tool, which has been developed to manage the proceedings of parallel court on a domestic level. The study concludes while arguing that when it comes to civil law tradition, lis pendens is regarded as an independent doctrine in international commercial arbitration since it shares the same claim of being tried in various forums simultaneously. In contrast, lis alibi pendens in the jurisdiction of common law is not known as a doctrine, but it is viewed as one of many factors whole applying the forum non-convenience principle. Both civil and common law need identity between various parties and their claims to constitute lis pendens in two proceedings, and therefore, they have a conform and deep understanding of the concept.

scholarly journals Bribery and International Commercial Arbitration – the Role of Mandatory Rules and Public Policy

2012 ◽  
Vol 43 (4) ◽  
pp. 661 ◽  
Author(s):  
Vladimir Pavić
Keyword(s):  
Public Policy ◽  
Civil Law ◽  
The Body ◽  
Criminal Behaviour ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Public ◽  
Additional Problem ◽  
Mandatory Rules

Although designed to resolve private disputes, usually commercial in nature, arbitration may nevertheless encounter during its course allegations of impropriety and criminal behaviour. In the context of international commercial arbitration, the most common of those are allegations of bribery. However, tribunals may adjudicate only matters of private law and, should they establish existence of bribery, may draw only civil law consequences thereof. An additional problem in this respect is determining the body of rules that will be applicable in defining the very notion of bribery, since some aspects of bribery are almost universally prohibited, while the others are banned only in certain jurisdictions. In determining the law applicable to the matters of bribery, tribunals then face choice-of-law dilemmas. Each of the public policy techniques (overriding mandatory provisions, international and/or transnational) has its strengths and weaknesses. 

2 Buenos Aires

2014 ◽  
Author(s):  
Garro Alejandro M ◽  
Fernández Michael
Keyword(s):  
Buenos Aires ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Positive Approach ◽  
Negative Perception ◽  
International Commercial Arbitration

This chapter evaluates the merits of Buenos Aires as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Argentina; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that arbitration in Argentina has its pitfalls, especially in light of the negative perception of arbitration brought about by numerous investor complaints against Argentina and the fact that the country continues to operate with an obsolete statutory framework in matters of arbitration in general, with very little attention paid to the singularity of international commercial arbitration. Arbitration law in Argentina fails to embrace a positive approach towards the enforcement of domestic as well as foreign arbitration agreements and arbitral awards.

THE ROLE OF THE DELOCALISATION THEORY IN THE DEVELOPMENT OF THE FRENCH LEGISLATION ON INTERNATIONAL COMMERCIAL ARBITRATION

2021 ◽  
pp. 125-132
Author(s):  
Daria O. Astakhova ◽  
Keyword(s):  
Civil Procedure ◽  
French Law ◽  
Commercial Arbitration ◽  
Choice Of Law ◽  
International Commercial Arbitration ◽  
Legal Science ◽  
Border Dispute ◽  
Recognition And Enforcement ◽  
Do So

The notion of delocalisation of international commercial arbitration has recently drawn increasing attention from Russian and foreign scholars. The main problematic of scientific discussions relates to the question of how closely international commercial arbitration is related to the legal order of the seat of arbitration. The emergence and development of the theory of delocalisation of international commer-cial arbitration is inextricably linked to the French legal science. French scientists stand at the origins of this theory. Besides, French law and jurisprudence have been significantly influenced by the theory of delocalisation of international commercial arbitration. The following provi-sions of the French legislation provide the most significant examples. First, article 1511 of the French code of civil procedure constitutes a basis for the use by arbitrators of the method of direct choice of law (“voie directe”). This implies that arbitrators do not have to apply any conflict of laws rules. Therefore, French law provides for a broad autonomy of arbitrators in the choice of law, while at the same time reducing the link between arbitration and national law, including the French law. French law is thus in perfect harmony with the concept of delocalisation of international commercial arbitration. Second, it is worth mentioning that the French code of civil procedure contains a limited number of grounds for refusal of recognition and enforcement of foreign arbitral awards. This particularity permits to ensure the highest efficiency of international commercial arbitration, to maintain an arbitration friendly approach at the stage of recognition and enforcement of foreign arbitral awards, as well as to recognise and enforce arbitral awards that have been set aside at the seat of arbitration. This corresponds to the idea of delocalisation of international commercial arbitration. Third, the influence of the delocalisation theory on the French legislation is also reflected in the scope of international competence of the French supporting judge, who can act in cases where one of the parties incurs the risk of denial of justice. This means that the French sup-porting judge is entitled, for example, to nominate an arbitrator if one of the parties fails to do so, even if the dispute does not have any objective links to France. The features of the French legislation on international commercial arbitration examined above prove that it is impacted by the theory of delocalisation of international commercial arbitration. The recognition in legal science, law and court practice of the autonomy of inter-national commercial arbitration from national legal orders contributes to the growth of attrac-tiveness of Paris as a place of cross-border dispute resolution.

1 Introduction

2017 ◽  
Author(s):  
Möckesch Annabelle
Keyword(s):  
Production Process ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Product Protection ◽  
Key Terms

This chapter provides an introduction to the concept of attorney–client privilege. It briefly illustrates that the nature and scope of the privilege vary between jurisdictions. It then discusses the role of attorney–client privilege in international arbitration and the difficulties that arise when determining the applicable attorney–client privilege standard in international arbitration. To enhance further discussion, the chapter also defines several key terms to be used throughout this book. These terms include ‘privilege’, ‘attorney–client privilege’, and ‘work-product protection’. Moreover, privilege is contrasted with the duty of confidentiality in international commercial arbitration and attorney–client privilege is contrasted with the lawyer’s duty of confidentiality. Lastly, the chapter makes a few practical observations on the document production process, in which attorney–client privilege is often invoked.

3 Cairo

2014 ◽  
Author(s):  
Hafez Karim
Keyword(s):  
International Trade ◽  
United Nations ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Trade Law ◽  
International Trade Law ◽  
The United Nations ◽  
Model Law

This chapter evaluates the merits of Cairo as a venue for international arbitration proceedings. It discusses the history and development of arbitration in Egypt; the processes and rules involved as well as the role of courts in the conduct of arbitration proceedings; and rules for arbitral awards. It concludes that Cairo has become an attractive venue for international commercial arbitration since the promulgation of the Arbitration Act, inspired by the United Nations Commission on International Trade Law (UNCITRAL) Model Law. The Egyptian courts are generally favorable to arbitration. They exercise minimal control over awards in actions for setting aside. The desirability of Cairo as a venue for international arbitration is further enhanced by the existence and activities of the Cairo Centre, which administers proceedings at very competitive rates compared with other arbitral institutions, and regularly updates its rules to reflect best international arbitration practices. The Centre also offers all the facilities required in connection with modern arbitration proceedings.

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