International Commercial Arbitration

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Objections with Temporary Impediment Effect in International Commercial Arbitration

Objections with Temporary Impediment Effect in International Commercial Arbitration

Delay in hearing and issuing a ballot may harm the parties to the dispute and hide others from the judiciary; as is the reason for recourse to arbitration, it is expedited and prosecuted; however, if the arbitrator provides the grounds for the hearing, Itself, is a breach of duty. Despite the importance of this issue, Iran's International Commercial Arbitration Rules do not have a decree on the deadline for issuing a ruling. Although the agreements between the parties to the arbitration are necessary in this regard, the question is, what should be done in the silence of the arbitration agreement? In other words, despite the silence of Iran's International Commercial Arbitration Law, should the judge hear the deadline? And if the answer is yes, when is the deadline limited? Legal logic requires that the issuance of an arbiter's judgment must be time-barred, since the most important goal of the conclusion of an arbitration agreement is speeding up the proceedings. Respect for the principle of speed is subject to such a deadline; as can be seen from Article 14 of the International Commercial Law Code of Iran. According to this article: "If, for other reasons, it succeeds in fulfilling its duties without delay, it will cease to be liable." Given the generality of this term of the matter, the observance of the deadline can be considered as an example. Regarding the deadline for issuing votes Although Iran's law is silent, but pursuant to Article 49, paragraph 2, of the Arbitration Rules of the Iranian Chamber of Judges, adopted on 2007 /6/5, "the judge is required to
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International Commercial Arbitration as an Alternative Method to  Solve International Commercial Disputes

International Commercial Arbitration as an Alternative Method to Solve International Commercial Disputes

The institute of international commercial arbitration, improving especially in the twentieth century, is considered as an important alternative to resolve disputes. Currently, in international commercial contracts the agreement of which way to choose in order to solve possible disputes, occupies a central role in the contractual provisions as a whole. The rapid development of international trade, the increase of investments in foreign countries that operate each with their own legislations, the need for an agreement to be found as soon as possible and for the process as a whole to respect confidentiality and to apply the rules of procedure in a flexible way represent significant reasons why disputing parties prefer international commercial arbitration to judiciary. The analysis of such advantages as well as of the different types of international commercial arbitration with a special attention to the Albanian law concerning international arbitration will be the focus of our paper.
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The Authority of Arbitrators to Order Security for Legal Costs in International Commercial Arbitration

The Authority of Arbitrators to Order Security for Legal Costs in International Commercial Arbitration

3. The authority of the arbitral tribunal to order security for costs in arbitration, under the UNCITRAL model law. The UNCITRAL Model Law "On International Commercial Arbitration" is a standard legislation that serves as a model for those countries that want to reform and modernize their international arbitration legislation. Since the Model Law has been adopted by 75 states and 106 jurisdictions, it is worth to see analyze how this law addresses the authority of the arbitral tribunal to order interim measures for legal costs in arbitration. Article 17 of the Model Law provides the right of the arbitral tribunal to issue interim measures in general. Prior to the amendments made to the Model Law in 2006, this article recognized the arbitral tribunal's authority to provide only those security measures which were considered "necessary for the merits of the dispute between the parties". 7 Given that
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The Process of Harmonisation of the law of international commercial arbitration: Drafting and diffusion of uniform norms

The Process of Harmonisation of the law of international commercial arbitration: Drafting and diffusion of uniform norms

Y. Dezalay and B. Garth, Merchants of Law as Moral Entrepreneurs, cit, p. 36. The best known representative of this group is, according to Dezalay and Garth, the Swiss professor and lawyer Pierre Lalive. As they put it, everyone with a rudimentary knowledge about international commercial arbitration knows his name, and most have met him at one time or another (or will say they have). His curriculum exemplifies the typical grand old man career . He started with a cosmopolitan education in Geneva and subsequently at Cambridge University. He became professor at the University of Geneva in 1955 and since the 1960s he has held eminent offices in the most prestigious institutions in the field of international law: in 1967 he became professor of the International Academy of Comparative Law in the Hague, from 1989 to 1991 he was President of the Institute of International Law, from 1988 to 1993 he was President of the UNIDROIT Committee of Governmental Experts on the Protection of Cultural Property. His first important role as an arbitrator was in 1955, when he served as secretary general before the World Court in the famous Aramco oil arbitration. He is the founder of one of the world’s leading law firms: Lalive & Partners. As his curriculum shows, his career is not entirely centered on international commercial arbitration. On the contrary, arbitration represents an additional specialization to a career already made in international law and in successful legal practice. The cosmopolitan symbolic capital represented by professor Lalive allowed him to be easily welcomed into any national or international field that required the services of legal professionals: he entered at the top because his presence would lend prestige to whatever organization or activity he elected to enter.
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An Analysis of National Courts Involvement in International Commercial Arbitration; Can International Commercial Arbitration Be Effective without National Courts?

An Analysis of National Courts Involvement in International Commercial Arbitration; Can International Commercial Arbitration Be Effective without National Courts?

The US Supreme Court led the way in the Mitsubishi case, followed by the case of Vimar Seguros S.A. v. M/V Sky Reefer (Vimar v Wilde (Vynior’s Case) (1609), where the court enforced arbitration, despite objec- tions that, arbitration clauses in contracts of bills of lading, were not enforceable because it was not freely nego- tiated. The US Supreme Court in particular holds the view that parties must be made to respect arbitral agree- ments whilst the issue of public policy is left to reviewing courts to consider when it comes to enforcement of awards under the New York Convention. This has been expressed to be a positive judicial move that will strengthen award enforcement, since public policy differs from each state, as such, an award once obtained can be potentially enforced. Also because refusing to enforce an award because it is against public policy is not en- couraging for international commercial arbitration seeing that God forbid that a lawyer should know all the law, so if the parties are unfortunate to choose a country where there agreement is not arbitrable it will be unfair for their agreement to not be arbitrated upon because it does not pass the test of arbitrability.
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DELOCALIZATION AND THE APPLICABLE LAWS IN INTERNATIONAL COMMERCIAL ARBITRATION

DELOCALIZATION AND THE APPLICABLE LAWS IN INTERNATIONAL COMMERCIAL ARBITRATION

prior to or during the proceedings, the party having a claim against a foreign state needs to seek judicial support to obtain decisions that are beyond the powers of the arbitrators and fall within the exclusive jurisdiction of the courts. Such may be the case in regard to the production of evidence, the appointment of experts to inspect the disputed quality of goods, or other interim measures of protection,including attachment of assets in litigation or intended to secure satifaction of an award. To the extent that such measures do not require compulsion, there is no reason to believe that sovereign immunity should be a factor of determination. The situation is otherwise the same in the case of attachment or simliar measures of execution provided that the award is valid award. Delocalized Arbitral Tribunal in international commercial arbitration is stricto senso a perfect tribunal with all necessary powers to make exparte award, to preserve the res, or with respect to issues as to it’s jurisdiction and competence. Delocalization theory is merely to detach the international commercial arbitration from legal system of the forum. One main purpose of delocalization is to eliminate the unintended effects of certain arbitration tribunal conducting delocalize arbitration seized with hostile features of the law of the place where the arbitration is held. Therefore an arbitral power to make interim award basically for protection and preservation of the res, pending the final award.
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Etching the Borders of Arbitration Agreement: the Group of Companies Doctrine in International Commercial Arbitration under the U.S. and Turkish Law

Etching the Borders of Arbitration Agreement: the Group of Companies Doctrine in International Commercial Arbitration under the U.S. and Turkish Law

The underlying motivation under Dow Chemical is that the international commercial arbitration is driven by the necessities of the evolving commerce, and therefore, the arbitrators should have the power to build resilience for these necessities, such as creating a new doctrine and apply the dispute. However, the group of companies doctrine, like any other new doctrines created by lex mercatoria, is open to criticism because lex mercatoria finds its own limits at the enforcement stage, and that can lead awards to be unenforceable before the national courts. 20
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The New Swiss Uniform Arbitration Act and International Commercial Arbitration

The New Swiss Uniform Arbitration Act and International Commercial Arbitration

It is worth pointing out here that in Swiss law the existence of an arbitration clause is a bar to an action in the ordinary courts of law," a distinctive feature when[r]

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Review of The Principles and Practice of International Commercial Arbitration by Margaret L. Moses

Review of The Principles and Practice of International Commercial Arbitration by Margaret L. Moses

parties should know before initiating arbitration. For these reasons, Moses demonstrates a well-defined and universally-recognized notion of what arbitration is and how it works. Her identification of topics makes the analysis more understandable and allows the reader to go step-by-step through the decision process. The way she presents this topic could be used as a checklist format, which simplifies the task of a practitioner, and it facilitates the understanding for any person interested in commercial arbitration. Moses’ suggestions on this subject are definitely something in which the reader will be interested, especially because her arguments are based on her practical experience. This element of subjectivity is the interesting aspect that Moses brings to the reader for discussion without losing easy perceptiveness, all the while maintaining a low degree of complexity. Other books deal with this topic as a complex treatise, and since they assume knowledge by the reader, the discussion becomes more philosophical rather than informative.
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International Commercial Arbitration: Reflections at the Crossroads of the Common Law and Civil Law Traditions

International Commercial Arbitration: Reflections at the Crossroads of the Common Law and Civil Law Traditions

The frameworks that generally govern international arbitrations, whether they be ad hoc arbitrations governed by the Rules of Arbitration of the United Nations Commiss[r]

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Recent Developments In Key Latin American Jurisdictions To Attract International Commercial Arbitration

Recent Developments In Key Latin American Jurisdictions To Attract International Commercial Arbitration

During this period of reform, many Latin American jurisdictions signed and ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Award[r]

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American and Other National Variations on the Theme of International Commercial Arbitration

American and Other National Variations on the Theme of International Commercial Arbitration

As with most modern statutes on arbitration, 1 23 the FAA recognizes the contractual principle of party autonomy and freedom, the elements that give arbitration its fund[r]

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Party Autonomy in International Commercial Arbitration: Consolidation of Multiparty and Classwide Arbitration

Party Autonomy in International Commercial Arbitration: Consolidation of Multiparty and Classwide Arbitration

251, § 2A (West 2003) (The relevant part of the Act is that a party aggrieved by the failure or refusal of another to agree to consolidate one arbitration proceeding with another [r]

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Electronic Discovery/Disclosure: From Litigation to International Commercial Arbitration

Electronic Discovery/Disclosure: From Litigation to International Commercial Arbitration

Besides the uncertainty regarding traditional personal rights as well as the fact that confidentiality is not guaranteed in arbitration, considerable conflict between parties from divergent backgrounds may stem from metadata issues. These arise because legal privileges (and the ‘without prejudice’ rule) that exist in many jurisdictions differ significantly in detail. These can make public policy issues more unruly in the digital era as electrons do not obey ethics or rules including personal rights. In addition, the parties may be ill-prepared for electronic disclosure and the tribunals may not be cognisant of issues around electronic disclosure. In those cases, no matter how efficient or effective the parties’ perception on arbitration, the prospect that their perceived rights may be adversely overruled may undermine the role of arbitration for international disputes.
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The Growing Role of Customized Consent in International Commercial Arbitration

The Growing Role of Customized Consent in International Commercial Arbitration

parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim an[r]

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Introduction: The Constitutional Law of International Commercial Arbitration

Introduction: The Constitutional Law of International Commercial Arbitration

In Weston's article, we learn about the importance of the American Arbitration Association (AAA) to the system of sports arbitration, which shows how the AAA, a criti[r]

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Regulatory Competition and the Growth of International Arbitration in Singapore

Regulatory Competition and the Growth of International Arbitration in Singapore

9 KP Berger, International Economic Arbitration (Denver: Kluwer, 1993). However, despite the fact that this figure is widely circulated in international arbitration scholarship (the author came across this statistic in four scholarly sources), it is likely inflated. As Born observes, the 90 percent figure “lacks empirical support and is almost certainly substantially inflated: in reality, significant numbers of international commercial transactions—certainly much more than 10 percent of all contracts—contain either forum selection clauses or no dispute resolution provision at all” (Gary Born, International Commercial Arbitration: Commentary and Materials, 2nd ed (The Hague: Kluwer, 2009) at 71). However, he accepts that in cross-border commercial transactions, the parties are “more likely than not” to include an arbitration clause in their contracts (Ibid). 10 Born, International Arbitration, supra note 3 at §1.07.
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Competing rationalities: The evolution of arbitration in commercial disputes in modern Jordan

Competing rationalities: The evolution of arbitration in commercial disputes in modern Jordan

Mattli takes the value of the ability to tailor needs further and proposes that the institutions of arbitration such as ICC and LCIA can respond much more quickly to demands for new dispute-resolution rules and services than public courts. The reason is evident: private courts are demand driven. The very same market actors who request new rules also control these courts. Casella54 notes these forums are shaped from the “bottom” that is, by the firms that voluntarily finance and share the “club goods”. Thus, the demanders are also the suppliers; they possess full information on how new business practices or changing market conditions affect their dispute- resolution needs. Institutions, therefore, are capable of quickly responding to new needs by creating new services and by rewriting the charters of their courts. The frequent revisions of the rules of major arbitral institutions attest to the high degree of institutional flexibility of these forums. Casella goes on to say that international arbitration is understood to provide a “super-national” jurisdiction created by international businessmen, shaped by the evolution of international markets, and itself responsible for some of this evolution. It has been theorized as the road towards a transitional law, a “self-made economic law” created spontaneously by private traders and evolving independently of national parliaments and courts. Arbitration “is a kind of social jurisdiction, as opposed to state jurisdiction. International commercial arbitration is the jurisdiction of the business circles engaged in international trade.”55 This has led the ‘club’ to attempt to formalise a “transitional” procedural law and “lex mercatoria”. The former as procedural rules that govern the conduct of the arbitration and the latter a substantive law to govern the substance of the dispute. Both rest on the premise that local arbitration laws and municipal laws are by definition inapplicable to international arbitration, which is visualised as occupying a juristic universe of its own governed by the law of the international trading community, detached altogether from the mundane preoccupations of any single national system of arbitration law.
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International Arbitration and Procedure: Transparency, Legitimacy and Bias

International Arbitration and Procedure: Transparency, Legitimacy and Bias

may affect the conduct of the proceedings. To that extent, the knowledge of the differences, approaches and expectations of the participants of the international arbitration is of a fundamental importance. The counsel and the parties are far less flexible in reaching the agreement as to the evidentiary rules. This leads to the clash of cultures and tailoring the appropriate rules of evidence might be a harsh task. The IBA Rules are said to be the compromise between the common law and civil law tradition, which harmonises the legal traditions, methods, approaches and views on the taking of evidence. However, the IBA Rules are not just the compilation of the rules present in different legal traditions and their harmonisation, but rather a new, hybrid system which includes some of the features of both of the system. The IBA Rules also create their own procedures, uniquely different from those of the civil law or common law traditions. The IBA Rules contain procedures that are not present in the proceedings
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A Guide to COMMERCIAL Mediation and Arbitration for Business People 1

A Guide to COMMERCIAL Mediation and Arbitration for Business People 1

Arbitration is less formal than litigation, and mediation is even less formal than arbitration . Unlike an arbitrator, a mediator does not have the power to render a binding decision . A mediator does not hold evidentiary hearings as would an arbitrator but instead conducts informal joint and separate meetings with the parties to understand the issues, facts, and positions of the parties . The separate meetings are known as caucuses . In contrast, arbitrators hear testimony and receive evidence in a joint hearing, on which they render a final and binding decision known as an award .
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