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Arbitration International
Number of Followers: 20

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

[412 journals]

The power of investment tribunals to enjoin domestic criminal proceedings
- Authors: Uilenbroek L.
  Pages: 323 - 345
  Abstract: The article examines the current state of play regarding interim measure requests to enjoin a host State from pursuing criminal actions within its territory. Balancing the host State’s inherent power to investigate and prosecute criminal actions that have allegedly taken place in its territory against the fundamental principle of integrity of the arbitration proceedings, it is suggested that, under exceptional circumstances, investment tribunals may restrain the host State’s police power. A severe threat to the integrity of the arbitration may merit the issuance of far-reaching interim relief, including orders to suspend domestic criminal proceedings and orders to ensure the claimant’s reasonable and confidential access to legal counsel. The author further argues that, under the most extreme circumstances, tribunals are empowered to order the temporary release of individuals who have been tried, convicted and imprisoned in the host State.
  PubDate: Fri, 15 May 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa018
  Issue No: Vol. 36, No. 3 (2020)
Anti-arbitration injunctions: walking the tightrope
- Authors: Garnett R.
  Pages: 347 - 372
  Abstract: Anti-arbitration injunctions are a controversial issue in the field of international arbitration. While some commentators decry them as an interference with the autonomy and independence of arbitrators, English and other common law courts steadfastly refuse to renounce them entirely. By reference to the framework established in recent decisions of the English Court of Appeal, the article seeks to forge a middle path between making anti-arbitration injunctions available on a discretionary, case management basis and prohibiting them in all cases. An approach that respects both the rights of arbitrators to determine their own jurisdiction and the rights of courts to protect parties from abuse of the arbitral process is advocated.
  PubDate: Fri, 01 May 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa019
  Issue No: Vol. 36, No. 3 (2020)
Jurisdiction and admissibility: a case study
- Authors: Obamuroh T.
  Pages: 373 - 413
  Abstract: Arbitrators cannot decide cases if they do not have jurisdiction. For this reason, a challenge to jurisdiction may prompt judicial intervention. Most national courts, however, limit their intervention to question of jurisdiction and do not interfere in the arbitral process if the objection is merely one of admissibility. The distinction between jurisdiction and admissibility is a valuable tool for differentiating when judicial intervention is appropriate and when it is not. The problem is that some national courts generally conflate the concept of jurisdiction, which may properly be the basis for such intervention, with admissibility issues, which should be referred to the tribunal to decide. As a case study, this article focuses on the conflation by Nigerian courts leading to an overly expansive allocation of authority to courts to make initial rulings, which in turn is abused by parties and undermines the efficiency of arbitration in Nigeria.To address the problem, this article proposes that Nigerian courts adopt the distinction between jurisdictional and admissibility objections in international arbitration. This distinction, while not perfect, can promote efficacy in arbitration seated in Nigeria. Adopting the distinction between admissibility and jurisdiction will enable Nigerian courts to exercise greater restraint in cases that do not go to the root of courts’ authority and promote outcomes that are more coherent and more consistent with their obligations under the New York Convention and Model Law.
  PubDate: Wed, 22 Jul 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa023
  Issue No: Vol. 36, No. 3 (2020)
Anti-arbitration injunction by Malaysian High Court—un(measured)
invocation of sovereign immunity
- Authors: Doshi H; Udgata S.
  Pages: 415 - 418
  Abstract: KEY REFERENCESGovernment of Malaysia v Nurhima Kiram Fornan & Others, Malaysian High Court, Originating Summons No BKI-24NCvC-190/12-2019 (HC2)Dayang Dayang Haji Piandao Kiram of Jolo, Philippines & Others v The Government of North Borneo & Others, High Court of North Borneo, Civil Suit No 169/39.Jaya Sudhir A/L Jayaram v Nautical Supreme Sdn Bhd & Others, Malaysian Federal Court, Civil Appeal No: 02(i)-83-09/2018(W)UNCITRAL Model Law on International Commercial Arbitration—Article 5
  PubDate: Tue, 28 Jul 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa025
  Issue No: Vol. 36, No. 3 (2020)
The distinctive status of international arbitration agreements in English
private international law'
- Authors: Phua M; Chan M.
  Pages: 419 - 427
  Abstract: This Case Note critically discusses the Court of Appeal’s recent decision in Enka v Chubb [2020] EWCA Civ 574, where it held that (i) the doctrine of forum non conveniens (FNC) can never apply where an English court is asked to determine if a London arbitration agreement should be enforced by injunction, and that (ii) the ‘separability’ of an arbitration clause from the contract containing it entailed that, absent an express choice of law for it, there was a ‘strong presumption’ that the parties implicitly chose the seat law as its proper law. In doing so, the Court abandoned its previous approach in Sulamérica v Enesa, and indirectly cast doubt on its recent suggestion in Kabab-ji v KFG that ‘implied choices’ of law arguably involved the implication of a term into the arbitration agreement on ‘business efficacy’ grounds. Further, the Court appeared not to acknowledge that, outwith the arbitration context, (i) ‘FNC waiver’ clauses and exclusive jurisdiction agreements do not categorically foreclose FNC, and that (ii) ‘implied choices’ of law should not be casually inferred nowadays. The Court’s analysis in Enka was distinctly arbitration-centric: it was minded to emphasize the non-derogability of the seat courts’ supervisory role, and the ‘separability’ of an arbitration agreement from the contractual document containing it. Enka is an intriguing example of how international arbitration doctrine, particularly as regards arbitration agreements, can materially diverge from cognate principles of private international law. Nevertheless, we question whether international arbitration agreements are truly distinctive enough to justify such differences in treatment. Our assessment is that the answer is probably ‘no’.
  PubDate: Tue, 28 Jul 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa026
  Issue No: Vol. 36, No. 3 (2020)
Setting aside arbitral awards in Singapore: due process and good faith
obligations
- Authors: Campbell M.
  Pages: 429 - 440
  Abstract: The Singapore Court of Appeal in CMNC v Jaguar Energy has offered clarification on what it identified as an ‘important area of arbitration law’: ie the correct approach to alleged violations of due process by tribunals in their management of the arbitral procedure. The case involved setting aside proceedings in the context of a complex dispute further complicated by the parties’ prior agreement for an expedited procedure. The Court of Appeal judgment takes a robust approach towards alleged due process violations. It emphasizes that the matter must be assessed according to a test of reasonableness and fairness with careful reference to the circumstances, and that courts should be cautious about interfering with a tribunal’s decision-making where there is a rational basis for those decisions. But CMNC v Jaguar Energy is notable for another reason: the presumption by the judge at first instance that there was implied into the arbitration agreement an obligation to arbitrate in good faith. That point may be of particular interest to those from common law jurisdictions where a more general debate over the role of good faith obligations in commercial contracts persists.
  PubDate: Sat, 08 Aug 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa028
  Issue No: Vol. 36, No. 3 (2020)
The changing ecosystem of Dutch BITs
- Authors: Lavranos N.
  Pages: 441 - 457
  Abstract: This article reviews the recent changes of the Dutch model BIT text. It provides a background of the political changes at the domestic as well as the European Union (EU) level, which have been driving these changes. The consequences of the Achmea judgment are of particular importance for the intra-EU BITs and potentially for the Energy Charter Treaty. Subsequently, the article highlights the most dramatic changes compared to the previous Dutch model BIT text and Dutch BIT practice. The author concludes that these changes will ultimately result in a lowering of the level of investor and investment protection.
  PubDate: Wed, 08 Apr 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa009
  Issue No: Vol. 36, No. 3 (2020)
International Arbitration: Law and Practice in Brazil, by Peter Sester, ed
- Authors: Fellas J.
  Pages: 459 - 463
  Abstract: International Arbitration: Law and Practice in Brazil, by SesterPeter, ed. Published by OUP (2020)
  PubDate: Sun, 09 Aug 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiaa024
  Issue No: Vol. 36, No. 3 (2020)