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Author | : Benjamin Hayward |
Publisher | : |
Total Pages | : 352 |
Release | : 2017-01-05 |
Genre | : |
ISBN | : 9780198787440 |
Download Conflict of Laws and Arbitral Discretion Book in PDF, ePub and Kindle
Arbitration is the dispute resolution method of choice in international commerce, but it rests on a complex legal foundation. In many international commercial contracts, the parties will choose the law governing any future disputes. However, where the parties do not choose a governing law, theprevailing approach in arbitration is to afford arbitrators broad and largely unfettered discretion to choose the law considered most appropriate or most applicable. The uncertainty resulting from this discretion potentially affects the parties' rights and obligations, the performance of theircontract, the presentation of their cases, and negotiations undertaken to settle their disputes.In this text, Dr Benjamin Hayward critically reviews the prevailing approach to the conflict of laws in international commercial arbitration. The text adopts a focused and detail-oriented analysis - being based on a study of more than 130 sets of arbitral laws and rules from around the world, anddrawing heavily on arbitral case law. Nevertheless, it remains both practical and accessible, taking as its focus the needs and expectations of commercial parties, who are the ultimate users of international commercial arbitration.This text identifies the difficulties that result from resolving conflicts of laws through broad and unconstrained arbitral discretions. It establishes that a bright-line test would be a preferable way to resolve arbitral conflicts of laws. Specifically, it recommends a modified Art. 4 RomeConvention rule as the ideal basis for law reform in this area of arbitral procedure.
Author | : Benjamin Luke Hayward |
Publisher | : |
Total Pages | : |
Release | : 2014 |
Genre | : |
ISBN | : |
Download Arbitral Discretion in Resolving Conflicts of Laws - the Case for a Bright-line Closest Connection Test in International Commercial Arbitration Book in PDF, ePub and Kindle
This dissertation establishes that the conflict of laws in international commercial arbitration - concerning the substantive law governing the merits of the dispute - should be the subject of reform. It proposes the introduction of a bright-line test, based on the concept of the closest connection. Its specific recommendation is for the adoption, in international commercial arbitration, of a modified version of the conflicts rule contained in Art. 4 Rome Convention. That provision incorporates a closest connection test, subject to a characteristic performance presumption. This dissertation's recommendation includes the adoption of modifications to the original Art. 4 Rome Convention text. These modifications are necessitated by the arbitration context, and are also prompted by better understandings of the original text's limitations that have been obtained through its application in case law and its consideration in scholarly analysis since the instrument was first opened for signature on 19 June 1980.This dissertation is situated at the intersection of international commercial arbitration and the conflict of laws. It is essentially a study of the tension in the law between certainty and flexibility - and more specifically, between provisions described by law and economics scholarship as rules and standards. Though this dissertation is concerned with a very specific subject-matter, its analysis is broad-ranging and contextual. It draws upon the law, practice and literature concerning conflicts of laws relating to both arbitration and State court proceedings. It also takes into consideration the way in which its analysis affects, and is affected by, other features of international commercial arbitration, and other aspects of arbitral procedure.This dissertation's analysis incorporates consideration of the way in which conflicts questions are currently regulated in an extensive sample of instruments. These include the UNCITRAL Model Law on International Commercial Arbitration, the arbitration laws of Switzerland, France and the United Kingdom, and 102 sets of past and present arbitration rules promulgated by key arbitral institutions and other interested bodies. It also takes the New York Convention as an essential baseline reference point.This dissertation recognises that the reform of arbitral procedure is always ongoing, and must be directed at meeting the needs of the commercial parties who are the true users of international commercial arbitration. To this end, its proposal is intended to contribute to the ongoing improvement of the law and practice of international commercial arbitration - an important form of commercial dispute resolution - and ultimately the promotion of international trade, and international economic wellbeing.
Author | : Anna M. Lohmann |
Publisher | : |
Total Pages | : 196 |
Release | : 2022-02-28 |
Genre | : |
ISBN | : 9783848784769 |
Download The Arbitrator's Discretion in Conflict of Law Matters Book in PDF, ePub and Kindle
For international commercial disputes, international commercial arbitration and the CISG together can provide a neutral platform. However, it is unclear whether arbitrators are bound by the CISG. This thesis first examines the legal nature of the CISG's application rules, finding that they constitute private international law, which leads to the fundamental matter of whether arbitrators are bound by PIL. International public and European law and legal practice are studied to answer this question, and in the end, a binding nature of PIL in arbitration is rejected. Finally, a cursory look is also taken at the binding effect of substantive law generally in arbitration.
Author | : Adams Rajab Makmot-Kibwanga |
Publisher | : GRIN Verlag |
Total Pages | : 6 |
Release | : 2019-02-14 |
Genre | : Law |
ISBN | : 3668877556 |
Download Arbitral Discretion and Procedural Autonomy Book in PDF, ePub and Kindle
Document from the year 2017 in the subject Law - Comparative Legal Systems, Comparative Law, grade: A, , course: MASTER OF LAWS IN OIL AND GAS, language: English, abstract: The question this paper seeks to address is whether arbitral discretion, by freewheeling, addresses the issues raised without compromising procedural autonomy. It is important to explain what procedural autonomy means before delving into the discussion. Simply put, procedural autonomy means set procedures based on independent rules and norms followed over time and respected and recognised as such without being questioned by the parties that subject themselves to them. In arbitration, it may refer to arbitration rules set by a tribunal system or the national legislations regulating arbitration in a particular legal jurisdiction. By and large, it is the whole philosophy of having pre-determined rules and norms that the arbitrators are discouraged from departing from during the process of arbitration. This does not mean that the arbitrators cannot exercise their discretion. In fact, the whole arbitration process is based on discretion, but rather that the discretion must be exercised within a known procedural framework. Since arbitral discretion deals with procedural matters as well it is often the practice of arbitrators to decide on the issues involved at pre-trial. Such pre-trial issues may include discovery of documents, admission evidence and raising of issues for determination. On the face of it the arbitrators may employ their discretion to decide how much of which evidence to be taken meanwhile faced with a challenge to decide which arbitration model to employ in conducting the pre-trial engagement if the parties are from two or more conflicting arbitration jurisdictions.
Author | : William W. Park |
Publisher | : OUP Oxford |
Total Pages | : 1096 |
Release | : 2012-09-20 |
Genre | : Law |
ISBN | : 0191634816 |
Download Arbitration of International Business Disputes Book in PDF, ePub and Kindle
Arbitration of International Business Disputes 2nd edition is a fully revised and updated anthology of essays by Rusty Park, a leading scholar in international arbitration and a sought-after arbitrator for both commercial and investment treaty cases. This collection focuses on controversial questions in arbitration of trade, financial, and investment disputes. The essays address some of the most interesting topics in cross-border business dispute resolution, many of which have endured over several decades and remain subject to radically different views. Examples include the proper role of judicial review, the allocation of jurisdictional tasks, evolution of arbitration's statutory and treaty framework, free trade and bilateral investment agreements, and the balance between fixed rules and arbitral discretion. The book is structured around three themes: arbitration's legal framework; the conduct of arbitral proceedings; and a comparison of arbitration in specific fields such as finance, intellectual property, and taxation. In each of these areas, analysis includes the tensions between fairness and efficiency, and the accurate application of substantive law as well as the implications of mandatory procedural norms. Augmented by more than a dozen new contributions and a revised introduction, this 2nd edition retains all of its earlier practical and scholarly relevance, and includes a Foreword by V. V. (Johnny) Veeder QC.
Author | : Ian A. Laird |
Publisher | : Juris Publishing, Inc. |
Total Pages | : 417 |
Release | : 2015-03-01 |
Genre | : Conflict of laws |
ISBN | : 1937518698 |
Download Investment Treaty Arbitration and International Law - Volume 8 Book in PDF, ePub and Kindle
This volume contains the papers and proceedings of the eighth annual Juris Conference addressing new developments in investment treaty arbitration with a focus on the fundamental issues that have drawn some of the greatest controversies in the jurisprudence over the past few years. The four topics addressed in this book include: Challenges to Arbitrators: Should the Challenge Process Be Overhauled?New Developments in Definition of "Investment": What Is the Role of the Concept of "Property" in Investment Arbitration?Is Investment Treaty Arbitration a Mechanism to Second-guess Governments' Exercise of Administrative Discretion: Public Law or Lex Investoria?Awarding Damages: Proportionality, Contributory Fault, and Arbitral Tribunals' Discretion or Toss of a Coin? Contributors: Meriam N. Alrashid Paul Barker Julie Bédard Alexander Bĕlohlávek Amal Bouchenaki Mark N. Bravin Kate Brown de Vejar Julián Cárdenas Garcia Tina Cicchetti Robert A. DeRise Paolo Di Rosa James Egerton-Vernon Timothy L. Foden George K. Foster John Y. Gotanda George Kahale III Jonathan S. Kallmer Joshua Karton Matthew S. Kronby Pablo D. López Zadicoff Juan Felipe Merizalde Urdaneta Craig Miles Caline Mouawad Timothy G. Nelson Michael Nolan Eloïse Obadia Sirshar Qureshi Charles E. Roh Charles B. Rosenberg Margarita R. Sánchez Matthew D. Slater Fernando A. Tupa Janet M. Whittaker
Author | : Farshad Ghodoosi |
Publisher | : Routledge |
Total Pages | : 169 |
Release | : 2016-06-10 |
Genre | : Law |
ISBN | : 1317292839 |
Download International Dispute Resolution and the Public Policy Exception Book in PDF, ePub and Kindle
Despite the unprecedented growth of arbitration and other means of ADR in treaties and transnational contracts in recent years, there remains no clearly defined mechanism for control of the system. One of the oldest yet largely marginalized concepts in law is the public policy exception. This doctrine grants discretion to courts to set aside private legal arrangements, including arbitration, which might be considered harmful to the "public". The exceptional and vague nature of the doctrine, along with the strong push of actors in dispute resolution, has transformed it, in certain jurisdictions, to a toothless doctrine. At the international level, the notion of transnational public policy has been devised in order to capture norms that are "truly" transnational and amenable for application in cross-border litigations. Yet, despite the importance of this discussion—a safety valve and a control mechanism for today’s international and domestic international dispute resolution— no major study has ventured to review and analyze it. This book provides a historical, theoretical and practical background on public policy in dispute resolution with a focus on cross-border and transnational disputes. Farshad Ghodoosi argues that courts should adopt a more systemic approach to public policy while rejecting notions such as transnational public policy, which limits the application of those norms with mandatory nature. Contrary to the current trend, the book invites the reader to re-conceptualize the role of public policy, and transnational dispute resolution, in order to have more sustainable, fair and efficient mechanisms for resolving disputes outside of national courts. The book sheds light on one of the most important yet often-neglected control mechanisms of today’s international dispute resolution and will be of particular interest to students and academics in the fields of International Investment Law, International Trade Law, Business and Economics.
Author | : Benjamin Hayward |
Publisher | : |
Total Pages | : 36 |
Release | : 2016 |
Genre | : |
ISBN | : |
Download New Dog, Old Tricks Book in PDF, ePub and Kindle
Parties to international sale of goods transactions often exercise their rights to choose a governing law and refer disputes to arbitration. Where their choice is incomplete, as is the case where the United Nations Convention on Contracts for the International Sale of Goods (CISG) is chosen, complex conflict of laws problems can arise, including disputes over the governing limitation period. While such disputes are traditionally resolved using conflict of laws methodologies, this article argues a superior solution can be achieved through procedural law. Through a simple discretion, arbitral tribunals may apply the limitation period from either the International Institute for the Unification of Private Law (UNIDROIT) Principles 2004 or the UN Limitation Period Convention. Such an approach makes determination of the governing limitation period a simpler process, allowing parties to focus their attention on what they are really concerned with - the merits.
Author | : Bruno Zeller |
Publisher | : Springer Nature |
Total Pages | : 194 |
Release | : 2021-07-22 |
Genre | : Law |
ISBN | : 9811626340 |
Download Enforcement of Foreign Arbitral Awards and the Public Policy Exception Book in PDF, ePub and Kindle
The book presents arguments derived from primary sources related to international arbitration in South Asian jurisdictions, a list of the same is made available therein. The book is a research statement on the contemporary concerns within international commercial arbitration, especially related to enforcement of foreign arbitral awards. Importantly, the book through a unique methodology of interface, presents the gratuitous nature of Article 34 of the UNCITRAL Model Law when read with Article V of the New York Convention, especially the plea to the States within Article VII of the same Convention to ease the restrictions and the process of enforceability of foreign arbitral awards. The book also articulates another important and immediate need with regard to international arbitration – the delimitation of public policy exception to recognition and enforcement of foreign arbitral awards. It critiques the jurisprudence related to arbitration in jurisdictions spread across different geographic regions, thereby enabling the reader to gain an insight into their practices, apart from ensuring a comparative perspective. The book addresses the primary concern related to international arbitration – enforcement of foreign arbitral awards and the grounds for challenges articulated within the New York Convention and the UNCITRAL Model Law. It addresses these grounds, and articulates the necessity for carving the criteria for the application of public policy exception. The book will not only be a useful resource for policy makers, students and researchers interested in international commercial arbitration, and private international law, but also for practitioners working on dispute resolution in trans-jurisdictional disputes in South Asia and beyond. “...The present book is not just another book contributing to the endless list of literature already widely used in International Commercial Arbitration on public policy but, in my opinion, is unique in many respects. The distinguishing factor of this book is its regional perspective..." - Justice Deepak Verma, Former Judge of Supreme Court of India and Arbitrator “...This book addresses this core element of the success story of arbitration: enforcement and refusal to enforce and, hence, its relevance cannot be overstated...” - Csongor István Nagy, Professor of Law and Head, Department of Private International Law, University of Szeged, Hungary Detailed Forewords are available in the book and can be freely downloaded from https://link.springer.com/book/10.1007/978-981-16-2634-0
Author | : Franco Ferrari |
Publisher | : Sellier European Law Pub |
Total Pages | : 466 |
Release | : 2011 |
Genre | : Law |
ISBN | : 9783866531703 |
Download Conflict of Laws in International Arbitration Book in PDF, ePub and Kindle
Irrespective of the increasing harmonization of law at the transnational level, every arbitration raises a number of 'conflict of laws' problems relating to procedural questions, as well as to issues concerning the merits of the case. Unlike a state court judge, the arbitrator has no lex fori in the proper sense, providing the relevant conflict rules to determine the applicable law. This raises the question of which conflict of laws rules apply and, consequently, the extent of the freedom the arbitrator enjoys in dealing with this and related issues. The best example of the importance of conflict of laws questions in arbitration is the Vivendi-Elektrim saga where the outcome of the various proceedings depended on the question of characterization. This book examines the arbitration agreement, the jurisdiction of the arbitral tribunal, the law applicable to the merits, and the arbitration procedure.