scholarly journals International Commercial Arbitration in Malaysia

2021 ◽  
Vol 29 (S2) ◽  
Author(s):  
Iyllyana Che Rosli
Keyword(s):  
New York ◽  
Best Practice ◽  
International Treaties ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Cross Border ◽  
Before And After ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention

In the recent two decades, the wave of globalisation has hit the Malaysian market. It hence contributes to the popularity of arbitration as the means to settle cross border commercial disputes. The existing literature concerned with Malaysia suggests that the recent trend in Malaysia is that arbitration has become the dominant choice of dispute resolution forum. Using qualitative and doctrinal methods, this paper seeks to analyse the regulatory framework for international commercial arbitration in Malaysia, before and after Malaysia’s accession to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (hereinafter, NYC 1958). The NYC 1958 is one of the most successful international treaties with 161 contracting States. The NYC 1958 aims to promote uniform practical procedures for the recognition and enforcement of foreign arbitral awards in its contracting States, irrespective seat of the awards. In doing so, the paper examines two significant periods of arbitration laws in Malaysia: pre and post-accession to the NYC 1958. The paper concludes that Malaysia no longer follows English arbitration legislation and instead follows international best practice by adopting the UNCITRAL Model Law on International Commercial Arbitration (hereinafter, UML) as the basis of its modern legislation, the Arbitration Act 2005. Malaysian courts are also seen to adopt a positive ‘pro-enforcement’ attitude in the application to recognise and enforce foreign arbitral awards, in promoting maximum enforcement of awards as promoted by the NYC 1958 and the UML.

Part 1 Fundaments of Arbitration in Brazil, 2 Comments of the Brazilian Arbitration Law

2020 ◽  
Author(s):  
Sester Peter
Keyword(s):  
New York ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Recognition And Enforcement ◽  
Model Law ◽  
New York Convention ◽  
Definition Of

This chapter examines the Brazilian Arbitration Law (BAL) of 1996. The BAL is a standalone act encompassing roughly 40 articles. It is divided into eight chapters and is applicable to both domestic and international arbitration, except for Chapter VI (The Recognition and Enforcement of Foreign Awards), which is modelled on the New York Convention (NYC). Hence, the BAL legislator adopted a monistic approach. Consequently, the BAL contains no definition of domestic or international arbitration, but only defines the term foreign award. According to article 34, sole paragraph BAL, an award is considered a foreign award if it was rendered outside the territory of Brazil. The present translation of the BAL builds on the terminology of the UNCITRAL Model Law on Commercial Arbitration and the NYC because both documents inspired the authors of the BAL and are cornerstones of international arbitration. This chapter of the book then provides comments on the BAL article by article.

Part 2 Determining the Applicable Attorney–Client Privilege Standard, 8 Applicable Privilege Standard in International Commercial Arbitration

2017 ◽  
Author(s):  
Möckesch Annabelle
Keyword(s):  
New York ◽  
Legal Framework ◽  
Equal Treatment ◽  
Common Denominator ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Mandatory Rules ◽  
Recognition And Enforcement ◽  
New York Convention

This chapter contains an analysis of the most appropriate way to determine the applicable attorney–client privilege standard in international commercial arbitration. To this end, this chapter deals with the characterization of privilege as substantive or procedural, the legal framework for attorney–client privilege in international commercial arbitration, international mandatory rules of law, and the enforcement regime under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. Against this background, the chapter includes an analysis of the possible approaches to determining the privilege standard. These include the application of general principles of law, the application of a single national law determined through a choice-of-law approach such as the closest connection test, the cumulative application of several national laws, and the creation of an autonomous standard defining the scope of attorney–client privilege. Lastly, the chapter examines whether corrective measures, such as the lowest common denominator approach or the most protective rule, are needed to ensure equal treatment of the parties and fairness of the proceedings. This chapter concludes with key findings on how to determine the applicable attorney–client privilege standard in international commercial arbitration.

Part IV International Treaties, 20 UNCITRAL Model Law on International Commercial Arbitration

2019 ◽  
Author(s):  
Roth Marianne
Keyword(s):  
United Nations ◽  
Arbitral Tribunal ◽  
International Treaties ◽  
Commercial Arbitration ◽  
National Legislation ◽  
International Commercial Arbitration ◽  
Trade Law ◽  
International Trade Law ◽  
Recognition And Enforcement ◽  
Model Law

This chapter provides an overview of the Model Law on International Commercial Arbitration (Model Law) of the United Nations Commission on International Trade Law (UNCITRAL). The UNCITRAL Model Law is considered one of the most important texts in international commercial arbitration and serves as a basis for harmonizing national legislation in this field. The chapter examines the drafting process for the UNCITRAL Model Law as well as the underlying objectives and principles of the Model Law, its structure (nine chapters and thirty-six articles), and its adoption by various states. It concludes with a commentary on the UNCITRAL Model Law, which covers topics ranging from basic definitions and general provisions to the arbitration agreement, the composition of the arbitral tribunal, the jurisdiction of the arbitral tribunal, the conduct of arbitral proceedings, the making of the arbitral award and recourse against the award, and the recognition and enforcement of foreign awards.

scholarly journals The Influence of the Law of the Country of the Place of Enforcement of the Arbitral Award on the Settlement of Disputes in the International Commercial Arbitration

2020 ◽  
pp. 86-97
Author(s):  
Volodymyr NAHNYBIDA
Keyword(s):  
Public Policy ◽  
New York ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Arbitral Award ◽  
Opposing Party ◽  
Recognition And Enforcement ◽  
The Law ◽  
New York Convention ◽  
The Impact

The article examines the key aspects of the impact of the law of the place of enforcement of the arbitral award on arbitration and directly on the recognition and enforcement of arbitral awards, given the study of doctrinal positions, regulations and relevant case law. It was found out that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 refers to the procedural rules of the country of enforcement to settle matters inherent to the recognition and enforcement of foreign arbitral awards not governed by the Convention, establishing only basic and fairly simple formal requirements for the said procedure, which is one of the strong characteristics of the conventional regime of recognition and enforcement of arbitral awards. In light of this, it is concluded that such an approach is moderate and takes into account the impossibility and lack of practical necessity of unification at the international treaty level of procedural features of recognition and enforcement of arbitral awards, establishing only basic principles and requirements. It is substantiated that there are two components of the law of the place of enforcement of the arbitral award, which regulate the recognition and enforcement of arbitral awards within the relevant jurisdiction, namely substantive and procedural, which, however, are contained in single legal acts — mostly national arbitration laws. The author emphasizes the crucial role of the law of the place of enforcement of the arbitral award in the material and procedural aspects for the procedure of recognition and enforcement of arbitral awards within the relevant jurisdiction. It is concluded that the unification of material grounds for refusal of recognition and enforcement (in particular, non-arbitrability of the subject matter of the dispute and contradiction of the award to public policy as grounds that can be raised by the competent judicial authority at the place of enforcement ex officio, regardless of reference to them by opposing party), as well as the consolidation of basic procedural requirements and principles is carried out by the New York Convention of 1958, which leaves to the discretion of the national legislature, on the one hand, the settlement of minor aspects of the procedure, but, on the other hand, recognizes its full discretion in determining the limits of objective arbitrability, the content and specific filling of the category of international public policy applicable in the relevant jurisdiction. Keywords: arbitral award, international commercial arbitration, applicable law, arbitration process, public policy.

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.

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.

Part IV International Treaties, 21 New York Convention

2019 ◽  
Author(s):  
Haas Ulrich ◽  
Kahlert Heiner
Keyword(s):  
New York ◽  
International Treaties ◽  
Future Prospects ◽  
Commercial Arbitration ◽  
Legal Nature ◽  
Recognition And Enforcement ◽  
New York Convention ◽  
Relationship Of ◽  
The Relationship

This chapter focuses on the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention or NYC), the most important convention on international commercial arbitration. It first provides an overview of the content and role of the NYC before discussing its history and its future prospects. It then considers the legal nature of (international) arbitration and how the provisions in the NYC are to be interpreted. It also offers a commentary on Articles I–VII of the NYC, which cover topics such as the prerequisites for recognition and enforcement of arbitral awards, obligation to recognize and enforce foreign arbitral awards, settlements in arbitration proceedings, recognition of arbitration agreements and the requirements as to their form, grounds for refusal of recognition, and enforcement of an arbitral award, and the relationship of the NYC to international and national regulations on the recognition and enforcement of arbitral awards.

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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