International Arbitration

The IBA rrevised its Guidelines on Conflicts of Interest in International Arbitration. This was the culmination of a review by the IBA Arbitration Committee, which began in 2012. The salient changes address the rise of advance declarations by arbitrators; third party funding; increasing significance of arbitral secretaries; and the possibility that an arbitrator, and counsel to one of the parties, operate from the same chambers. The Guidelines are widely consulted when arbitrators evaluate whether they can accept appointments, or if they first need to make disclosures to the parties about potential conflicts. This article outlines the key changes in the revised Guidelines.

Arbitration and jurisdiction agreements give effect to procedural party autonomy and, thus, are fundamental tools for commercial parties to plan an effective dispute resolution policy. The factual assumption that would give rise to the possibility of claiming damages will be where, despite the existence of a valid and enforceable arbitration agreement, a party seizes a court either because it genuinely believes that the arbitration agreement is null and void or that it does not cover the dispute submitted, or for tactical reasons (delaying the arbitration or obtaining a more favourable decision).

Undoubtedly, the forum where parties litigate their dispute will influence the outcome of the case. Thus, to be forced to litigate in a non-contractual forum when the parties have expressly agreed to resolve their disputes trough arbitration - with the arbitration rules, conflict-of-law rules, etc. - certainly makes a big difference.

The focus of this work is to explore the options available for the innocent party when the breaching party initiates litigation in violation of the arbitration agreement. In that scenario, the main contribution will be to demonstrate that the innocent party should be able to file a claim for monetary relief before the arbitral tribunal, either in the form of an award of damages or in the form of an indemnity against any judgment that might be rendered in the parallel litigation. Additionally, that the claim for damages falls within the arbitral tribunal’s jurisdiction because it is covered by the arbitration agreement.

Under Venezuelan law, as in other jurisdictions, an arbitration agreement imposes to parties the obligation to refer present or future disputes to arbitration. Since an arbitration agreement is a legally binding agreement, the study of their obligations could be performed under the principles of the law of contract. The breach of the obligations derived from the arbitration agreement legitimizes and entitles the injured parties to a various set of remedies and opens a wide view on disputes resolution. These lines present a general overview of the topic from a Venezuelan Law's perspective.

O Artigo trata do princípio competência-competência, a partir da Lei de Arbitragem brasileira, inclusive mediante a comparação com a adoção do princípio na esfera judicial.

The Article deals with the competence-competence principle, based on the Brazilian Arbitration Law, including through comparison with the adoption of the principle in the judicial sphere.

This paper will argue that the burden of proof should be on the State invoking the right to deny investment protections under art 17(1). In doing so, s 1 will provide an overview of the questions surrounding ownership and control over investments by a third state under the Energy Charter Treaty (ECT). Section 2 will thereafter initially explore the general theories surrounding burden of proof in international law. Section 3 will then consider ECT art 17(1) and evaluate the nature of the denial-of-benefits provision. Section 4 will analyse the allocation of the burden of proof in establishing ownership and control over an investment under the ECT, after which s 5 will explore the different approaches to allocating the burden of proof under art 17(1). Finally, before concluding, s 6 will analyse which approach of allocating the burden of proof under art 17(1) might be better suited with regard to the objectives and spirit of the ECT.

Recientemente en España se ha llevado a cabo una honda reforma legislativa del sector eléctrico. Esta ha reducido considerablemente el apoyo estatal al sector de las energías renovables. Por esta razón, los productores de energías renovables realizaron reclamaciones contra el Estado español por los daños causados por este cambio legislativo.Las reclamaciones se efectuaron ante tribunales nacionales e internacionales. Los primeros están rechazando estas reclamaciones basándose en el concepto de riesgo regulatorio. Mientras, en cuanto a los segundos, el CIADI ha resuelto recientemente la primera controversia al respecto, fallando a favor de los inversores. Este laudo arbitral basa su argumentación jurídica en el incumplimiento por parte del Estado español del Tratado sobre la Carta de la Energía.De este modo, el análisis realizado en este artículo permite identificar la existencia de un trato diferenciado del tema en función de la aplicación del derecho interno o del internacional, lo...

Undisputedly the most significant event for Bulgaria for the past 2016 in the field of international arbitration is the issuance of the award under the case of the Russian company JSC AtomStroyExport (ASE) against Natsionalna Elektricheska Kompania EAD (National Electricity Company – NEK) concerning the order of equipment for building the nuclear power plant in Belene. According to the award, NEK was obliged to pay ASE around EUR 600 million. Consequently, the Bulgarian National Assembly adopted the Act for Granting Support for Payment of Debts of Natsionalna Elektricheska Kompania EAD (promulgated in SG, issue 76 of September 30, 2016) for the purpose of ensuring funds for NEK to voluntarily pay its debts to ASE. The total amount of the state loan to NEK for settling its relations with ASE was BGN 1.2 billion. The present paper examines what were the opportunities for defence before the Bulgarian state in the case and what conclusions could be derived for future cases of similar nature. (Note: The paper was originally written in Bulgarian - see the link, but enclosed hereto is an English translation - see the attached file)

The nature of the arbitration agreement in most legal systems (at least legal systems other than common law) is somewhat unclear. Presently, it is not possible to make any decisive statements as to which theory is the only correct one. On the other hand, it is necessary to examine each arbitration agreement invoked by the parties at the beginning of the proceedings and choose one of the current theories mentioned above. The classification of the arbitration agreement might, under certain circumstances, be the decisive element in determining the rules, i.e. procedural or substantive rules, applicable to the arbitration agreement. In civil law tradtion arbitration agreements may be defined as procedural agreements in broader sense, which does not have effects in proceedings only, but which are of substantial significance for qualitative evaluation of the substantive contractual relation between parties. Nevertheless, despite a mixed nature of arbitration agreements (as well as all jurisdictional agreements), jurisdiction is a procedural and not substantive category in the civil law tradition and jurisdiction remains the procedural condition (procedural requirement). Taking decision on jurisdiction in arbitration by partial award is in contradiction to the concept of jurisdiction as a procedural category, rather an interim award may be used for such decisions. Jurisdictional decisions taken in course of arbitration are, however, not substantive decisions and do not effect any Res Judicata. Some of civil law jurisdictions, completely in compliance with the concept of jurisdiction as procedural category, therefore deny to set-aside jurisdictional awards rendered prior to rendering award(s) on the merits of the dispute. Having any civil law dimension in arbitration, it may cause significant problems to the parties, if the arbitral tribunal decides on jurisdiction by a separate jurisdictional award.

This paper delves in the comparative study of Asian and Western models of dispute resolution, arbitration in particular, and asks how cross-cultural differences affect arbitrator behavior. It proposes that arbitration styles differ across collectivist and individualist culture, without necessarily saying that one is better than the other, but simply that knowledge of the differences will help users of arbitration make informed decision in choosing their party-appointed arbitrators.  It also proposes to conduct further research to address the issue of developing and/or reforming the arbitration infrastructure in Asia, particularly the Southeast Asian region, to address the gap in international commercial arbitration to reflect the non-Western (or non-European) voice.
It draws from existing comparative studies of Western and East Asian arbitrator’s role or perception of their roles within the arbitration paradigm, and how that affects the arbitration process, as well as research on how cross-cultural differences affect international arbitration in general. It also draws from existing empirical research comparing the collectivist and individualist perspectives in dispute resolution, as a general discipline, and juxtaposes these findings within the arbitration model.

"A obra vem a público em momento singular, no qual a arbitragem, doméstica e internacional, assume importância extraordinária no Brasil. O livro agora apresentado contribuirá para disseminar o estudo e também para consolidar o futuro da arbitragem em território brasileiro. Assim o fazendo, estará ajudando a consolidar o direito dos brasileiros à mais ampla liberdade" (Min. Luis Felipe Salomão, Prefácio).

Despite the fact that investment arbitration has been developing for the better half of the century, the issue of legality of investment has only gotten onto the radar of arbitral tribunals in the last two decades. The authors consider the existing case law in this specific area through the prism of a recent decision rendered in the Fynerdale Holdings B.V. v. The Czech Republic (PCA Case No. 2018-18). This article provides insight into the discussion on the legality requirement and explains the general tendencies of investment tribunals when they deal with an illegality objection.

In this comparative and analytical study, I offer the most comprehensive and detailed account of China's Treaty Policy and Practice in International Investment Law and Arbitration published to date. After outlining the evolution of China's macroeconomics and ideological stance toward foreign investment, I analyze the relationship between the model investment treaties China adopted over the time and those of other traditional key players in the field (Germany, UK, France, Italy, Netherlands). Most innovatively, by analytically surveying several key provisions (including ISDS, expropriation, MFN, NT, FET, FPS) of 120 International Investment Agreements concluded by China, this work manages to draw an objective assessment of the investment treaty policy and practice of a nation that has quickly become a leading importer and exporter of capital across the globe.

The arbitrator’s power to determine the manner in which the arbitration is to be conducted is expansive and is circumscribed only by the agreement between the parties and the legislative fiat to treat the parties equally. The arbitrator has the power to determine his own jurisdiction; he is empowered to order interim measures of protection; his award is enforceable in the same manner as that of a decree of a civil court. For most purposes, the arbitrator is a substitute to the civil court. Nevertheless, the arbitrator is not bound to strictly follow the Evidence Law or the Civil Procedure Law as applicable to a court of law. The arbitration statute is silent as regards whether the arbitrator is obligated to frame issues to determine the dispute. While an arbitrator trained in law would not face problems in framing issues, non-lawyer arbitrators face difficulty in doing so. This short paper addresses this topic of practical significance. Further, it also discusses the possibilities of alternatives to framing issues to enable the arbitrator resolve the disputes in an effective manner.

The field of international commercial arbitration has developed with momentous speed in ongoing many years. It has expanded significantly as the best question settlement component, and thus a significant and imperative apparatus for advancing international business and investment. Subsequently, shows and deals have been embraced, and concentrated international establishments have been set up, to improve and work with the working of international arbitration. In India, close by the modernization of the general set of laws, since 1990, there has been a reformist pattern towards the codification of arbitration and reception of cutting edge arbitration law. At last in 1996, after a to a great extent inadmissible of the Arbitration Act, 1940, India opened another part in its arbitration law when it authorized the Arbitration and Conciliation Act, 1996. This Act is for the most part enlivened by the Model Law (1985). India has likewise joined different significant international shows on international arbitration, like the Geneva Convention, 1927 and especially the New York Convention, 1958 on the implementation of unfamiliar honors. A formative point of view, where by talking about the improvement of International Commercial Arbitration in India, yet additionally follows a similar methodology. Henceforth, different parts of the Indian arbitration law are contrasted and the previous Arbitration Act, 1940, the Model Law (1985) and international shows like as the New York Convention, 1958 and furthermore with the arbitration laws of different nations.

Dubai, the commercial hub of United Arab Emirates has seen exponential growth in the past four decades. The mega and iconic projects and skyscrapers are the witness to the growth. What is more impressive is the openness of Dubai to commission a micro jurisdiction (Duba International Financial Center) with Common law principles amidst the Civil law jurisdiction that is widely being practiced within the GCC and even Middle-East region. The DIFC has its own courts based on Common law principles and also an arbitration centre in collaboration with London Court of International Arbitration.

In addition, Dubai has shown greater acceptance of arbitration as a mechanism to resolve disputes in construction and commercial industry. It’s a little secret that Dubai aspires to be an international arbitration centre with the likes of Paris, London, Singapore and Hong Kong. Dubai has the world class facilities and connectivity with most of the cities in the world and with billions of money is being invested in infrastructure and construction projects, and given the fact that construction industry is prone to have disputes, it is only logical to shape this city as a regional arbitration centre.

However, there has been questions about the enforcement of arbitral awards in this country given the uncertain nature of the judicial decisions in the past concerning the enforcement. Until this date, UAE doesn’t have its own arbitration law, although the draft is doing rounds for the past several years. Currently the arbitration is governed by the UAE Civil Procedure Code and it is safe to say that the CPC is cryptic and does not address all the issues that normally arise in an arbitration process.

In the past, attacks on procedural grounds of the arbitration awards were common and unlike the judges the arbitrators does not enjoy statutory immunity and hence it is prudent not only to ensure the awards are enforceable but also to ensure that the arbitrators are not personally liable. Despite clear rules stipulated by Dubai International Arbitration Centre, Dubai International Financial Centre and Abu Dhabi Centre for Conciliation and Arbitration Centre, the personal liability of the tribunal is still one of the most hotly debated topics in the industry.

However, recently the Dubai Court of Cassation handed judgments in two cases  confirming that the tribunals and the arbitrators are not personally liable. The case was initiated by a leading developer and it was against senior and reputed arbitrators who are very well known in the industry. The tribunal was appointed by Dubai International Arbitration Centre under DIAC rules.

Article 40 of the DIAC Rules of Arbitration provides that
“No member of the Tribunal shall be liable to any person for any act or omission in connection with the arbitration”.

Similarly the Article 24 of the DIAC Statute Rules states
“Neither the Centre nor any of its employees, members of the Board of Trustees, its Committees or members of any dispute settlement panel shall be held liable for any unintentional error in their work related to the settlement of disputes by the Centre.”

Despite such clear indication preserving immunity of the tribunal, these two cases went all the way up to the apex court and thankfully the Cassation Court upheld the arbitrator immunity. These two case laws are highly important for arbitrator fraternity.

In this article, the author is intending to examine the relevant clauses in UNCITRAL Model law and UAE Civil procedure code for provisions related to arbitrator immunity and liability. Further the rules of both Dubai International Arbitration Centre and Dubai International Financial centre would be examined to get clarity on this issue. The facts of the case law and judicial verdict will be analysed in brief and finally it will be summed up with the current legal position with respect to arbitrator immunity.

Why do countries continue to make sovereignty claims over territories that they lost a long time ago and are in no position to take back by force? Further, why do they refuse compromise solutions that are better than the status quo? We argue that a belief in territorial indivisibility may explain these puzzles, and in many of the most intractable territorial disputes, such a belief may arise from the claim of historical ownership over these territories. Using a survey experiment in Japan, we investigate whether historical ownership engenders in respondents a belief in territorial indivisibility, and whether such a belief contributes to more hardline policy positions toward territorial disputes. We find that historical ownership does play a significant role in the respondents' perceptions of territorial indivisibility compared with an alternative scenario involving no such prior ownership. Furthermore, those who hold a belief in indivisibility are more likely to support hardline policies and are much less likely to support bilateral negotiation. Finally, arbitration involving international organizations receives a high level of support irrespective of the divisibility of a disputed territory.

Объектом исследования в статье «Правовое регулирование процессуального соучастия в международном коммерческом арбитраже» являются общественные отношения в области процессуального соучастия в международном коммерческом арбитраже. Авторы попытались на основе анализа действующего правового регулирования процессуального соучастия в международном коммерческом арбитраже, определить основные тенденции и проблемы данного регулирования, сформулировать возможные подходы совершенствования в законодательстве. В результате исследования сделаны предложения по совершенствованию белорусского законодательства и регламента Международного арбитражного суда при БелТПП.

This paper was delivered at a joint conference of the Institute of Advanced Legal Studies and the University of Exeter on The Future of the Commercial Contract in Scholarship and Law Reform, London, 22 September 2016.

It outlines the potential advantages to investors of including ICSID arbitration clauses in contracts with sovereign counter parties.  It enquires why so few investors seem to avail themselves of this option and identifies a need for further research.

The 2019 novel coronavirus disease (COVID-19) pandemic has affected all aspects of our lives in ways unimaginable. Dispute resolution is no exception. Several arbitration institutions, organisations and practitioners have identified tools for adapting the dispute resolution process to the new reality, including through the use of technology that offers to replace physical hearings with virtual ones.

The International Chamber of Commerce (ICC) has been at the forefront of these efforts. On 9 April 2020, the ICC Court issued a guidance note
on possible measures aimed at mitigating the effects of the COVID-19 pandemic. This blog provides an overview of the Guidance's main features.

Arbitral institutions play a major role in the continuous growth and success of international arbitration. Every arbitral institution has its own culture – a particular way of doing things that distinguishes it from others. This article discusses the concept of “institutional culture” and examines three different elements that contribute decisively to the culture of arbitral institutions: location and legal culture, background of arbitrators, and the language of arbitration. In order to succeed in the highly competitive market of international arbitration, arbitral institutions need to be transparent and flexible so as to accommodate a diversity of cultural and legal backgrounds and expectations.

1. INTRODUÇÃO AO TEMA 1.1 A definição de quem é ou pode vir a ser parte em uma arbitragem é questão das mais fascinantes para os que se dedicam ao estudo desse cada vez mais consagrado método alternativo de resolução de conflitos. O cenário pode ser simples e não oferecer maiores problemas, como quando se está diante de controvérsia que atinge exclusivamente os direitos e obrigações das partes signatárias da convenção de arbitragem. 1.2 A questão pode se tomar mais complexa, porém, quando a controvérsia posta a apreciação do tribunal arbitral envolve ou atinge direitos e obrigações de quem não é signatário da convenção de arbitragem. Ou quando a eficácia da sentença arbitral depende da intervenção de terceiro estranho a convenção de arbitragem, contra quem a parte, por exemplo, precisa garantir um direito de regresso. Ou ainda quando há evidência de que o terceiro, conquanto não tenha firmado a convenção de arbitragem, contribuiu para a consecução do contrato e para o surgimento do conflito, como por vezes ocorre em grupos de sociedades. 1.3 Em um primeiro momento, portanto, remetendo às discussões que compreensivelmente o assunto da participação de terceiros na arbitragem continua a despertar, tanto no Brasil quanto no exterior, permitimo-nos trazer ao debate algumas considerações acerca de como a participação de terceiros na arbitragem é tratada no regime da Lei 9.307/96 ("Lei no 9.307/96" ou "Lei de Arbitragem Brasileira") e dos princípios que regem a intervenção de terceiros. 1.4 A seguir, faremos um breve apanhado de como a doutrina e a jurisprudência estrangeiras veem as arbitragens envolvendo múltiplas partes para, então, retratar em que medida esse cenário internacional tem influenciado os 1 Sócio Pinheiro Neto Advogados de São Paulo. 2 Assistente do Pinheiro Neto Advogados de 520 Paulo.

The subject of this article holds relevance both to the business world and to judges and arbitrators. It provides a comparative law exploration of the nuances of arbitration clause interpretation under the legal systems of France and Russia.

Procedural due process requires all legal proceedings to be fair and that every party involved is given notice of the proceedings, are treated equally, and are given an opportunity to be heard and to deal with the case of its opponent before a decision is made by a lawfully constituted tribunal or decision maker. However, while the mandatory due process requirements are of utmost importance within international arbitration, where are its limits? How far shall the equal treatment and procedural fairness go, and can it happen at the expense of procedural efficiency? The users of international arbitration tend to be concerned on the delays and high expenses of arbitration. A recurrent complaint is the 'judicialisation' of arbitration; that the procedure is becoming as equally formal dispute resolution proceeding as litigation. Simultaneously, the international arbitration field has been promoting arbitral cost and time efficiency, by incorporating relevant provisions to national arbitration laws, institutional arbitration rules and to other soft law elements. This contribution addresses the balance between the requirements of due process and efficiency within international arbitration.

This book takes a close look at the Court of Arbitration for Sport (CAS), challenging existing claims and answering previously unanswered questions, by considering all of its publicly available decisions, both in its entirety as a body of jurisprudence and on a case-by-case level.
It also investigates the actors involved in adjudication before the CAS, both the parties that bring disputes before the CAS and the arbitrators that resolve them, and in so doing establish precedents that govern sports generally.

While the book relies upon and includes more traditional legal theory and analysis, it combines this with an empirical analysis of a large portion of the CAS's decisions. Hereby it relies upon and relates to the theory of the development of a transnational legal order in sports, the lex sportiva.
The publication is targeted at and will benefit those professionally working in or interested in the fields of sports law, arbitration law, transnational law, or empirical legal studies.

Arbitration has been a means of resolving disputes since the beginning of time, changing as the world changed and surviving unscathed the collapse of civilizations and empires, deep transformations in social systems, different ways of seeing the world around us. Far from declining, it seems today to be more alive than ever, globalization having given it even stronger impetus. The complexity of business transactions, transcultural issues, the birth of trade organizations, gathering countries and legal systems that might seem incompatible, have not discouraged recourse to arbitration, quite the opposite. It has proved a flexible, effective and reliable resource. Of course, not all problems are over. One of the most fascinating issues in my eyes concerns language. It could not be otherwise, when the parties increasingly often come from different Countries: they may choose to negotiate in either of their languages, in both, or in neither, selecting a third language – usually English – that is not the mother tongue of either of them, and yet will become the language in which they conduct business, deal with vital questions, raise their claims, and try to avoid litigation. And the technical terminology of arbitration itself is full of interesting discoveries. This paper intends to explore the history, development and problems of language in this specific field. Definitions and Historical overview When the parties come from different Countries, bridging language differences is a prerequisite for the success of arbitration: failing to do so can bring about unforeseen and costly consequences. As we will see, history has played a primary role in introducing words and expressions that have become peculiar to this process.

The present paper analyzes the concept of ‘arbitrability’ in the context of construction disputes arising out of contracts with public authorities from a Bulgarian law perspective. What disputes are arbitrable under Bulgarian law? Are construction disputes with public authorities arbitrable and, if yes, are there any special rules that would apply so that the dispute becomes eligible for resolution by arbitration? What is the recent court practice on these issues? The answer to these and other questions related to the arbitrability of construction disputes
with public authorities can be found in this analysis. (Note: the paper is in English)

Aufgrund des völkerrechtlich nicht anerkannten Krim-Referendums führte
die EU 2014 Sanktionen gegen Russland ein. Auch die Schiedsgerichtsbarkeit ist hiervon betroffen. In der Praxis kommt es immer öfter vor, dass Parteien mit Bezug zu Russland Schiedsstandorte in der EU meiden.

El autor revisa las formas en que ha sido entendido el término Soft Law, su importancia para el Derecho, y la rela- ción que guarda el mismo con otras disciplinas de relevancia jurídica. Asimismo, se hace hace una determinación de la natu- raleza del Soft Law concluyendo que el mismo no puede enten- derse como una norma jurídica, sino dentro de la categoría de la fuentes materiales del Derecho.