JournalTOCs

Arbitration International
Number of Followers: 20

Full-text available via subscription

Subscription journal
ISSN (Print) 0957-0411 - ISSN (Online) 0957-0411
Published by Oxford University Press

[413 journals]

The grapes of dispute resolution: arbitration and wine
- Authors: Menjucq M; Gouiffès L.
  Pages: 465 - 474
  Abstract: AbstractThis article explores the interplay between arbitration and wine law and the possibility of having increased recourse to arbitration in wine-related disputes. Since Antiquity, wine production and commercialization have been subject to specific regulations, which have progressively given rise to modern wine law. Wine law is primarily focused on the protection of the geographical origin and branding of wine as well as consumer protection, fields typically inadequate for arbitration. However, wine law also covers wine commercialization and related operations such as vineyard sales, which offer many opportunities for arbitration in the wake of the internationalization of wine production and trade. This is particularly true since the wine sector is characterized by both very specific trade usages and a high degree of technicality, which require adjudicators of wine-related disputes to have a high degree of sectorial expertise. Arbitration therefore appears to be a particularly well-suited means of dispute adjudication for wine-related litigation, as illustrated by the authors’ experience.
  PubDate: Fri, 09 Oct 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa037
  Issue No: Vol. 36, No. 4 (2020)
Hybrid (institutional) arbitration clauses: party autonomy gone wild
- Authors: Molina Esteban C.
  Pages: 475 - 489
  Abstract: AbstractHybrid institutional arbitration clauses are situations in which parties choose one arbitral institution to administer a case but under the rules of another arbitral institution. This forces institutions to adapt their organs to the chosen set of rules, making procedures more cumbersome and increasing litigiousness. As a consequence, hybrid arbitration clauses are a prime example of something parties may choose to do under the principle of party autonomy, yet shouldn’t do in the interest of safeguarding the principle of efficiency of arbitral procedure.This article analyses existing cases on the matter in order to extract conclusions as to how the interplay between party autonomy and efficiency operates in each case and at a broader level.While all decisions have upheld the validity of hybrid clauses, the analysed cases open up a whole set of additional questions, on which a consensus may not be reached: Does upholding the validity of hybrid arbitration really further party autonomy if institutions are heavily construing arbitration agreements' Should the choice of an administering institution or the choice of rules prevail' What weight should be attached to an institution's willingness to administer a case' These questions underscore the key tension between party autonomy and procedural efficiency.
  PubDate: Sat, 10 Oct 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa027
  Issue No: Vol. 36, No. 4 (2020)
Don’t rage against the machine: why AI may be the cure for the ‘moral
hazard’ of party appointments
- Authors: Schwing M.
  Pages: 491 - 507
  Abstract: AbstractIn 2010, Jan Paulsson decried the use of party-appointed arbitrators in international arbitration as a ‘moral hazard' that threatened the legitimacy of arbitration as an impartial method of dispute resolution. He suggested a series of reforms, most notably allowing arbitral institutions to make all arbitrator appointments. Over the past decade, commentators have debated Paulsson's arguments and whether arbitrators should be chosen by parties or arbitral institutions, relying on an assumption that those two methods are the only ways by which arbitrators can be selected. This essay demonstrates that both approaches are fundamentally flawed, because they are subject to the self-interest and biases of human beings. Moreover, it explains how modern technology has produced a new way by which arbitrators can be selected--specifically, via artificial intelligence (AI)--that allows for parties to have input into the selection process but removes the issues that arise when parties select arbitrators directly. As this essay illustrates, using an AI to select arbitrators will allow arbitrators to truly be independent, ensure that arbitrators are selected for their merit and not for their connections, eliminate incentives for compromise awards and the use of dissents to communicate leanings to future appointing parties, and increase diversity in arbitrator appointments.
  PubDate: Wed, 04 Nov 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa033
  Issue No: Vol. 36, No. 4 (2020)
Irreconcilable perspectives like in an Escher’s drawing' Extension
of an arbitration agreement to a non-signatory state and attribution of
state entities’ conduct: privity of contract in Swiss and investment
arbitral tribunals’ case law
- Authors: Magnarelli M; Ziegler A.
  Pages: 509 - 520
  Abstract: AbstractA matter of perspective' When a dispute arises and on the government’s side a non-signatory to the arbitration agreement or investment treaty adopted the contested action, privity of contract and rules of attribution of conduct may apply. Both have been interpreted in different manners. When one put all these interpretations together, the result is a picture of impossible spaces and irreconcilable scenarios like in a drawing of Escher. If Escher expressed his artistic inspiration by challenging gravity and visual logic, practitioners may nowadays find challenging solving the dilemma of when and how an arbitration agreement can be extended to a non-signatory state or the conduct of a state entity be attributed to the state.In its recent decision 4 A_636/2018, the Swiss Supreme Court confirmed its case law that exceptions to the doctrine of privity of contract exist under Swiss law, but these are limited in number and scope. The same applies regardless of whether private or public entities are concerned. This article will examine decision 4 A_636/2018 in light of Swiss case law and draw a comparison with investment arbitral tribunals’ jurisprudence applying rules of attribution of conduct of customary international law when privity of contract lacks on the government’s side.
  PubDate: Thu, 13 Aug 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa034
  Issue No: Vol. 36, No. 4 (2020)
Resurrecting the debate on ‘due process paranoia’ in Centrotrade:
Paranoia or Judiciousness'
- Authors: Saha S; Shukla S.
  Pages: 521 - 528
  Abstract: AbstractRecently, the Hon’ble Supreme Court of India in Centrotrade Minerals and Metals Inc v Hindustan Copper Ltd, rejected an application for non-enforcement of a foreign award and justified its ‘pro-enforcement’ bias. The Apex Court was of the opinion that there was no due process violation as the arbitrator provided enough opportunities to the parties to present the case but the respondent failed to abide by the timelines. Although, the Court has correctly interpreted the scope of due process but unfortunately, failed to address the repeated extension of arbitral proceeding at the cost of efficiency and speed. On a closer study, the Apex Court’s ruling resurrects a puzzling question of the arbitrator’s perceived reluctance to reject dilatory tactics of the respondent during arbitral proceeding. This article examines the implications of the ruling on arbitrators as they may be more exposed to the unscrupulous attempts of the parties to wilful delay under the garb of ‘due process paranoia’.
  PubDate: Fri, 28 Aug 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa035
  Issue No: Vol. 36, No. 4 (2020)
To boycott proceedings or not' Recourse against arbitral awards on
jurisdictional grounds by different categories of respondents under the
Model Law
- Authors: Chan D; Neoh C.
  Pages: 529 - 556
  Abstract: AbstractThe remedies that award debtors have under Articles 16(3), 34 and 36 of the Model Law, and more critically the inter-relationship between those remedies, has attracted much debate. Yet there is a dearth of analysis on how the availability of each remedy may differ according to the award debtor’s degree of participation in the arbitral process. Such analysis carries significant practical value for parties in considering whether and to what extent they should participate in any arbitral process when they harbour jurisdictional objections. This article distils Singapore’s experience, describing how Singapore has implemented the ‘choice of remedies’ principle for participating, non-participating, and boycotting respondents with jurisdictional objections, with comparative observations from Hong Kong, England, and New Zealand. This article shows that the ultimate matrix of remedies chosen by Singapore is far from straightforward. The question whether a respondent has participated in the arbitral process is also a vexed one. The analysis in this article begs the question whether in pursuit of harmonization future reforms to the Model Law ought to be considered.
  PubDate: Sun, 04 Oct 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa029
  Issue No: Vol. 36, No. 4 (2020)
The Silent Spring of Human Rights in Investment Arbitration: Jurisprudence
Constante through Case-Law Trajectory
- Authors: Joshi R; Gurpur S.
  Pages: 557 - 570
  Abstract: AbstractAs a niché body of jurisprudence, International Investment Arbitration has paradoxically remained aloof from developments in other related spheres of law. Increasingly, however, Tribunals have been compelled to reflect on matters arising out of a human rights narrative. This article studies the perspectives of certain stakeholders in choosing to employ human rights to further social, economic or environmental interests in an investment arbitration. These stakeholders are: Claimant, Respondent, Third Party Interveners, Tribunal, and Enforcing Jurisdiction. Reliance is placed on awards spanning 28 years from 1989 to 2017 under the ICSID regime as well as in ad hoc arbitrations under the UNCITRAL Rules. An analysis of trends in case law sheds light on the nature of a jurisprudence constante developing in this regard. The article also explores limitations to, and recommendations for, the engagement of human rights within the realms of Investment Arbitration.
  PubDate: Sun, 03 May 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa020
  Issue No: Vol. 36, No. 4 (2020)
The extension of arbitration agreements to third parties through the lens
of Egyptian courts
- Authors: Shehata I.
  Pages: 571 - 581
  Abstract: AbstractExtending arbitration agreements to third parties has long been a recurring debate in the world of international commercial arbitration. There are various mechanisms by which an arbitration agreement might be extended to third parties. This includes the doctrines of group of companies, group of contracts, universal succession, and assignment of contracts. The fact that the Egyptian Arbitration Law—alike most arbitration laws—does not deal specifically with this issue leaves a gap to be filled by the courts. This article tries to analyse and synthesize the various decisions rendered by the Egyptian courts in an attempt to identify their stance in this area. In this regard, this article will first discuss the privity of contracts from an Egyptian legal perspective, then will delve into the various constructs and mechanisms that could be utilized under Egyptian law when it comes to the extension of arbitration agreements to third parties. Special attention will then be paid to a specific issue, namely the extension of arbitration agreements under a contract to the letters of guarantee issued in connection with the same contract.
  PubDate: Sun, 03 May 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa013
  Issue No: Vol. 36, No. 4 (2020)
Exploring the prospects of host-state counterclaims in corruption disputes
- Authors: Vijayvergia C; Belmannu P.
  Pages: 583 - 600
  Abstract: AbstractWhile the regime of investment treaty arbitration has evolved manifold over the decades, has the position of the host-states as a Respondent improved' The authors argue that it has not. Bilateral Investment Treaties (hereinafter BIT(s)) are still asymmetrical in nature where the states are obliged to protect the rights of the foreign investors but are not provided with any remedy against the corrupt activities of the investors. While tribunals have denied jurisdiction over the investors’ claims tainted with corruption, they have provided states with no consequent remedy against such investors. Consequently, the states have to first bear the loss of a failed investment in its territory and then pay for the exorbitant costs of international arbitration as well. Where scholars are arguing for attribution of liability of corrupt activities of the public officials to the states, the authors here raise an important question of what if the liability cannot be attributed to the states due to lack of apparent authority' Should the states be then allowed to move forward from the jurisdictional stage to raise counterclaims to seek damages for the loss caused by the investors' In this article, the authors explore these questions and present arguments in favour of the inclusion of corruption-based counterclaims.
  PubDate: Thu, 01 Oct 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa041
  Issue No: Vol. 36, No. 4 (2020)
Portigon v Spain: new frontiers for financial institutions in
investor–state arbitration'
- Authors: Apostolova K.
  Pages: 601 - 609
  Abstract: AbstractHistorically, financial institutions have preferred litigation over arbitration as a dispute resolution mechanism. In recent years, however, financial institutions have turned to international arbitration more often. This is reflected in the 2018 Queen Mary International Arbitration Survey which concluded that financial institutions are ‘contemplating arbitration with much greater interest than ever before’. In addition to incorporating international arbitration clauses more often in their contracts, financial institutions have become increasingly aware of the protections established by international investment treaties and are more actively seeking to benefit from the rights they establish for qualifying investors. A recent decision has revealed how important those rights could be. In August 2020, for the first time in investor–state arbitration, in Portigon v Spain, a tribunal found that a financial institution may seek protection under an investment treaty for project finance because project finance, in the form of long-term loans and swaps, constitutes a protected ‘investment’ under the relevant investment treaty. While the decision remains confidential as of the publication of this article, it is an opportune moment to review the proposition that project financiers may seek protection under investment treaties against state actions that affect adversely the projects they are financing.
  PubDate: Thu, 05 Nov 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa045
  Issue No: Vol. 36, No. 4 (2020)