Search

Copyright of Revista Vasca de Derecho Procesal y Arbitraje is the property of Instituto Vasco de Derecho Procesal and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Pravnik is the property of Czech Academy of Sciences, Institute of State & Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The increasing number of arbitral decisions has led to potentially conflicting decisions in the field of international commercial arbitration. Generally, this contradiction may affect the investment environment in a negative way. Hence, this leads the researchers to answer an important question about the effective ways of dealing with these conflicting decisions. This paper focuses on the value of arbitral precedents and the creation of an appellate system or a formal system of the scrutiny of arbitral awards in all the major institutions offering arbitration services. Although the author believes that there is no doctrine of binding precedents in international law, as it is in the international commercial arbitration, and it is more dismissive in the Civil Law Legal System countries as the UAE, it is increasingly clear, in some arbitration systems, that arbitrators frequently cite to other arbitrators' awards to avoid contradictory in similar cases. Taking the above background into consideration, the main question is: Do arbitrators create precedent? On the other hand, irrespective of any particular stance on the need for an appeal system in international arbitration, the author finds that this proposition may offer some minimal safeguards towards reducing conflicting arbitral decisions. [ABSTRACT FROM AUTHOR]

The aim of the paper is to present the subject matter related to the procedure of resolving disputes arising in connection with implementation of agreements concluded on the basis of contract models published by the international federation FIDIC in 1999 Red and Yellow Book. The intention of the authors of the FIDIC templates was to apply an autonomous multistage procedure (the so-called multi-step clause) for resolving disputes based on arbitration without taking the matter to court. However, the application of the procedure proposed by FIDIC raises controversies of legal and factual nature. The problems concern, in particular: the nature, immediate enforceability, contestability of decisions issued by the Dispute Adjudication Board (DAB) and methods of their reinforcement. Other issues concern the absence of 'standing' or 'full-term' Adjudication Board and the right to arbitration in case when a party violates the internal dispute resolution procedure described in the contract, both for reasons dependent on and beyond its control. The publication is of legal and comparative nature and contains the analysis of related jurisprudence of civil law systems of selected countries. [ABSTRACT FROM AUTHOR]

This paper summarizes the history of arbitration in Hungary with special emphasis on the antecedents of the valid act on arbitration. Since the Parliament of Hungary adopted a new act on arbitration in 2017 (Act LX of 2017 on Arbitration), the study describes the most important features of this Act from a historical-comparative view, highlighting the fact that this act is fully in line with the UNCITRAL Model Law on arbitration of 1985 and amended in 2006. The article stresses the annulment of arbitral awards, which seems to be a key - issue in international commercial arbitration. The study also introduces the new framework for arbitration regarding Arbitral Tribunal on Commerce as a permanent arbitral tribunal, which integrates the arbitral tribunal attached to the Hungarian Chamber of Commerce and Industry (MKIK), the Arbitral Tribunal on Energy, and the Arbitral Tribunal on Money and Capital Markets. The paper reaches to the conclusion that the Hungarian New Act on Arbitration is a turning point regarding the Hungarian arbitration in terms of legislation, and at it is to raise several important questions during its practical application. [ABSTRACT FROM AUTHOR]

Copyright of Vniversitas is the property of Pontificia Universidad Javeriana and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Due to this international character of English, texts in this language -as proffered by several major institutions in the area of public and private law- are deployed as necessary tools of communication in the course of the establishment of transnational commercial and juridical relationships. However, English as the language of the law has been branded as a complex, opaque, kind of discourse. The aim of the present paper is to address the question of the undeniable complexity of legal texts in English as instruments to wield power, their unveiled communicative aim being to separate the ruler from the citizen and the legal message from its user. To demonstrate the validity of such thesis, genre analysis has been applied to three paradigmatic texts, consequential to develop international deals in the transnational contexts: the insurance policies of the London Institute of Underwriters at Lloyd's, the Rules issued by the London Court of international Arbitration and the Geneva Convention on the Contract for the International Carriage of Goods by Road (CMR). The goal of our study will be carried out through different levels to discern whether there exists any possible equation between power and textual complexity: the formal and discursive level, which will scrutinize lexicon, syntax and textual elements (macrostructure of texts and metadiscourse markers) and the pragmatic level, which will study the texts as peculiar generic types of legal agreements where power and commitment between the parties as a set of directives, i.e. obligations exerted by a powerful party over another, the recipient of the text. [ABSTRACT FROM AUTHOR]

The enforcement of foreign arbitration awards in North Korea is highly problematic due to the unique legal and economic structures. A dearth of enforcement options for property rights, rooted in limited individual ownership, widespread distrust in local currency, and limited movable assets, leads to a focus on real estate use right for enforcement actions. The absence of private real estate ownership and a proper registration system, however, pose considerable challenges. Article 65 of North Korea’s External Economic Arbitration Law provides seven grounds for refusal to recognize and enforce foreign arbitration awards, one of which allows for broad interpretation, possibly leading to governmental interference or non-enforcement. Furthermore, this article highlights the difficulties in enforcing arbitration awards via real estate assets due to restrictions on ownership and the absence of a real estate registration system. This article also analyzes ambiguities in transferring real estate use rights to foreign creditors following arbitration awards. [ABSTRACT FROM AUTHOR]

A private plaintiff may bring an action against a defendant for the infringement of competition law. In Western countries, it is widely accepted that parties can subject to choice of forum agreements claims seeking private law remedies based on competition law infringements. Accordingly, parties are free to refer those claims to a foreign court or arbitral tribunal for their determination. In contrast, it remains an open question in most Asia-Pacific jurisdictions whether competition-related claims are subject to choice of forum agreements (in particular, an arbitration agreement). If the answer is affirmative, a number of incidental questions will arise. For instance, in what kinds of competition-related claims and under what circumstances will choice of forum agreements be applicable? With focus on international arbitration, this article will look into recent developments around the globe and then propose how states in the Asia-Pacific region should approach those issues. [ABSTRACT FROM AUTHOR]

Commercial arbitration and personal data protection is an aspect of the theoretical dispute regarding interference of public law norms in private law or vice versa, sometimes the qualification of influence depending on the branch from which the regulation is analyzed. Rethinking data protection in the European Union has a significant impact on commercial arbitration. In the first part of the article we note the role of data protection rules in arbitration. For the arbitral tribunal, data protection is a public law obligation, which joins its own confidentiality. First of all, it is significant for disclosing the obligations of arbitral tribunals regarding the protection of personal data, for the establishment of technical and organizational measures. Recent documents are analyzed, such as the ICCA-IBA Roadmap to Data Protection in International Arbitration. In the second part, we consider elements of cyber security specific to commercial arbitration. In the third part of the article, we note the role of arbitration in resolving disputes in the field of personal data protection. [ABSTRACT FROM AUTHOR]

Copyright of Revista Română de Drept European is the property of Wolters Kluwer Romania and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The arbitrability of civil fraud under Indian jurisprudence had been a victim of vaguely worded and scattered tests for a considerable period of time. In its recent decision in Avitel Post Studioz Ltd v HSBC PI Holdings (Mauritius) Ltd. , the Supreme Court of India finally put the uncertainties regarding the matter to rest by harmonizing the existing law on it and crystallizing the 'public flavour' standard. According to this standard, allegations of fraud which find their roots in civil law and have no public considerations shall now be considered arbitrable in India. The judgment also clarified the impact that parallel criminal proceedings based on the same set of facts would have on the arbitrability of the civil aspects of such fraud, bringing necessary clarity to the erstwhile regime. In this article, we explore the implications of this judgment in detail, highlighting its relevance for arbitration in India, and how it impacts the jurisprudential position on the arbitrability of fraud in the country. [ABSTRACT FROM AUTHOR]

Copyright of Revista de Administración Pública is the property of Centro de Estudios Politicos y Constitucionales and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Dispute resolution has become increasingly shrouded in secrecy, with the proliferation of protective orders in discovery, confidential settlement agreements, and private arbitration. While many civil procedure scholars have criticized this trend for undermining the systemic benefits of public adjudication, the desirability of secrecy in civil litigation proves to be a much more complicated question. On the one hand, some of those same scholars have recently sought to justify civil litigation in terms that, ironically, highlight the benefits of secrecy. Although this new justification remains somewhat inchoate, it is best understood as a claim that the procedures of civil litigation allow individual plaintiffs to realize one aspect of their dignity--which this Article labels "dignity-asstatus"--by empowering them to call those who have allegedly wronged them to account and to thereby reassert their standing as equals. The problem is that civil litigation can also undermine another aspect of plaintiffs' dignity--which this Article labels "dignity-as-image"--by requiring them to divulge sensitive personal information and thus to cede control over their public self-presentation. Secrecy can help to preserve this second aspect of plaintiffs' dignity. On the other hand, secrecy can also deprive plaintiffs of a potentially powerful expressive weapon in their quest to hold wrongdoers accountable. In conditions of socioeconomic inequality, weaker plaintiffs can sometimes turn the humiliating aspects of civil litigation to their advantage, intentionally revealing sensitive personal information that emphasizes their lower social status in order to shame their more powerful adversaries. It turns out that civil litigation can indeed promote plaintiffs' dignity-as-status, but by affording them a venue in which to deliberately compromise their dignity-as-image--to humiliate, as much as ennoble, themselves. Given the complex nature of dignity and the complex trade-off between secrecy's dignitarian benefits and costs, plaintiffs should be given more control over how much of their personal information is disseminated beyond the immediate parties to a lawsuit--a prescription with implications not only for secrecy in civil litigation, but also potentially for several other prominent procedural issues. [ABSTRACT FROM AUTHOR]

The article explores alternatives on the use of experts in arbitration for improved efficiency. Topics covered include the goals in expert analysis, contrasting common law and civil law models, and the U.S. system of party-appointed experts. The important role of tribunal-appointed experts in enhancing the efficiency of the process is also examined.

Whether the arbitrator has a role in settlement facilitation is under aspects of common law and civil law still viewed differently, whereby even in civil law the degree of such an involvement is not assessed unanimously. It seems that arbitrators in Switzerland and Germany take the most pro-active approach in this respect. The common law concern is vested mainly in the assumed change of role of the arbitrator to mediator and - in case settlement facilitation fails - back to arbitrator again (Arb-Med-Arb). In Zurich a procedure practised by the Zurich Commercial Court to summon the parties after the first round of written submissions to a so called "Referentenaudienz" has found its way also into arbitration. The author outlines that such procedural instrument does not follow rules of mediation. Rather it is a procedural tool sui generis, which can be used in arbitration proceedings without raising concerns of bias for the arbitrator. [ABSTRACT FROM AUTHOR]

An evidentiary privilege is a rule of evidence that allows the holder of the privilege to refuse to provide evidence about a certain subject or to bar such evidence from being disclosed or used in judicial or similar proceedings. Such privileges are readily recognized in common law jurisdictions, as a response to intrusive disclosure, but they are less necessary in civil law governed proceedings. Investment treaty arbitration tends to follow the common law approach to disclosure and therefore evidentiary privileges are relevant. Investment treaties and institutional arbitration rules are typically silent on evidentiary privileges, but their application is recognised in the IBA Rules on Evidence. A review of awards shows that issues relating to evidentiary privileges do arise regularly in investment treaty arbitrations, especially claims by States that certain documents contain state secrets. Tribunals may be required to choose between two or more potentially applicable privileges found in national and international practice, so called ’conflict of privileges’. This article addresses: (i) the powers of international investment treaty tribunals to determine evidentiary issues; (ii) the choice of evidentiary privileges; (iii) legal professional privilege; (iv) settlement privilege; (v) political sensitivity; and (vi) waiver. [ABSTRACT FROM AUTHOR]