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Arbitration International
Number of Followers: 22

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

[411 journals]

Which Law Determines the Confidentiality of Commercial Arbitration'
- Authors: Clifford P; Scogings E.
  Pages: 391 - 399
  Abstract: AbstractCommercial arbitration taking place in England is commonly believed to be confidential, and this is often presented as an advantage over court litigation (which is generally not confidential). However, absent express provision, the precise extent of any confidentiality is a mystery to many and its legal basis, beyond being an implication as a matter of English law, remains unclear. In particular, what is the trigger for the implication: the venue for the arbitration, the seat of the arbitration or the law governing the arbitration agreement' This article addresses these questions.
  PubDate: Mon, 20 Jan 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiz025
  Issue No: Vol. 35, No. 4 (2020)
Interest in International Arbitration, by Matthew Secomb
- Authors: Gerbay R; Estrada F.
  Pages: 529 - 532
  Abstract: Interest in International Arbitration, published by OUP by SecombMatthew. ISBN: 9780198779513 (2019, 270pp)
  PubDate: Tue, 28 Jan 2020 00:00:00 GMT
  DOI: 10.1093/arbint/aiz024
  Issue No: Vol. 35, No. 4 (2020)
Giving away home field advantage: the misguided attack on confidentiality
in international commercial arbitration
- Authors: Foden T; Repousis O.
  Pages: 401 - 418
  Abstract: AbstractAn acclaimed feature of international arbitration is confidentiality. Almost universally, handbooks on international arbitration celebrate confidentiality as a characteristic of arbitration, often when contrasting arbitration with litigation or when discussing the four key selling points of arbitration, namely, speed, cost, confidentiality, and enforceability. Yet, owing to the backlash against investment treaty arbitration, critics have started to suggest that confidentiality in commercial arbitration is a bad thing. But confidentiality is of fundamental importance when it comes to commercial arbitration and the criticism levied at commercial arbitration by reference to transparency considerations in investment arbitration is misplaced. Setting out from this premise, this article first identifies those reasons or perceived shortcomings of confidentiality that according to critics justify a presumption in favour of transparency and publication. Secondly, this article shows that for the most part, the ongoing vilification of confidentiality is the outcome of a worrying trend that risks sacrificing the interests of clients on the altar of a ‘one size fits all’ approach to transparency. This is a false premise and a reminder that attempts to ‘reform’ can have the opposite effect, especially when reformists overlook the needs of the users and the specificities of commercial arbitration.
  PubDate: Mon, 23 Dec 2019 00:00:00 GMT
  DOI: 10.1093/arbint/aiz020
  Issue No: Vol. 35, No. 4 (2019)
Purchase price adjustment disputes in mergers and acquisitions: an
intersection of different dispute resolution procedures and a war of
jurisdictions
- Authors: Özdem B; İnce İ.
  Pages: 419 - 439
  Abstract: AbstractFrequently included in mergers and acquisitions (M&A) contracts purchase price adjustment clauses allow for upward or downward adjustments to the purchase price depending on a selected metric to help the parties of a transaction to overcome the information asymmetry about financial variables caused by the time lag between signing and closing. As a complex weave of technical accounting, financial, and legal issues, regardless of how objectively and meticulously conceived and drafted, it is quite often that disruptive issues arise in connection the with these clauses. In addition to the general arbitration clause typically contained in the M&A contracts, as a common practice, parties agree to submit any dispute concerning the values reported in the financial schedules to calculate the amount of an adjustment to an independent accounting firm for an expert determination. Since most of the time contracts do not provide any particular provision as to the relation between these two mechanisms, the practice shows that neither the demarcation of the two from each other nor the interaction between them is always unproblematic. This article, after explaining the price adjustment clauses, discusses the potential problems of which the parties should be well aware and address considering the case law and different approaches.
  PubDate: Mon, 30 Dec 2019 00:00:00 GMT
  DOI: 10.1093/arbint/aiz019
  Issue No: Vol. 35, No. 4 (2019)
Emergency Arbitration: Mere Innovation or Vast Improvement
- Authors: Alnaber R.
  Pages: 441 - 472
  Abstract: AbstractEffectiveness of emergency arbitration is a disputable question, which was touched by several commentators since it was first introduced in 2006. Concerns have been raised in relation to the enforceability of emergency reliefs under the New York Convention and the risk of concurrent jurisdiction between emergency arbitrators and national courts in granting interim measures prior to the constitution of the arbitral tribunal. A more specific concern is related to the suitability of introducing this mechanism, to investment arbitration. This article argues that adopting an international instrument for enforcing emergency reliefs will be the best solution. As for investment arbitration, emergency arbitrators are no less important in this type of arbitration than in commercial arbitration. However, certain features of emergency arbitration shall be tailored to meet the distinct nature of investment cases. Although certain amendments are needed to enhance the effectiveness of this relatively new mechanism, the future of emergency arbitrator is still optimistic. Therefore, to avoid any duplication of fora, courts are expected to respect emergency arbitrator's jurisdiction and only intervene when the latter is not capable of granting a relief.
  PubDate: Mon, 30 Dec 2019 00:00:00 GMT
  DOI: 10.1093/arbint/aiz021
  Issue No: Vol. 35, No. 4 (2019)
Arbitration and tax treaty disputes
- Authors: Markham M.
  Pages: 473 - 504
  Abstract: AbstractThe Organisation for Economic Cooperation and Development’s Base Erosion and Profit Shifting Action Plan and its implementation around the world over the last few years has brought about widespread and fundamental changes to the international tax framework. A corollary of these changes has been an increase in international tax treaty disputes, as newly-designed rules are challenged by both taxpayers and tax administrations. This article seeks to examine how such controversies have been addressed in the past, and to evaluate whether in this new environment arbitration may provide the key to successful tax treaty dispute resolution, despite concerns regarding national sovereignty. It considers the changes effected to the traditional tax treaty dispute resolution mechanism under the Mutual Agreement Procedure by the Action 14 Final Report on Making Dispute Resolution Mechanisms More Effective. Furthermore, it evaluates the use of arbitration under the Multilateral Instrument, as well as the application of certain reservations and options available in this regard. It explores some of the benefits of instituting an arbitration procedure that will ensure resolution for all international stakeholders. Finally, it considers the potential for Advance Pricing Agreements to proactively resolve tax treaty disputes, and the need for taxpayers to take a strategic and informed view of controversy management in the international tax sphere.
  PubDate: Thu, 26 Dec 2019 00:00:00 GMT
  DOI: 10.1093/arbint/aiz023
  Issue No: Vol. 35, No. 4 (2019)
Judicial (non)appointment of arbitrators in India: a case study of
‘inadequate stamping’ as a ground for non-appointment
- Authors: Vij S; Mansinghka V.
  Pages: 505 - 527
  Abstract: AbstractArbitration is premised on parties’ agreement. At times, however, the parties’ agreement fails to provide for a procedure for appointment of the arbitral tribunal, or the parties fail to fulfil the steps contemplated under such procedure. In such cases, parties are constrained to approach the domestic courts to seek appointment of the arbitral tribunal. This Model Law concept of judicial appointment of arbitrators has been adopted in the Indian arbitration law as well. While the law mandates courts to endeavour to appoint arbitrators as expeditiously as possible, Indian courts often indulge in a substantive review of the dispute to find grounds to refuse to appoint arbitrators. This article aims to analyse the causes and effects of this approach of Indian courts and the corresponding response of the Indian legislature. For this, the authors focus on inadequate ‘stamping’, i.e. deficiency in payment of an Indian tax on legal documents, which has emerged as a peculiar ground for courts to refuse to appoint arbitrators.
  PubDate: Mon, 23 Dec 2019 00:00:00 GMT
  DOI: 10.1093/arbint/aiz022
  Issue No: Vol. 35, No. 4 (2019)