International Commercial Law - 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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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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Electronic Discovery/Disclosure: From Litigation to International Commercial Arbitration

Electronic Discovery/Disclosure: From Litigation to International Commercial Arbitration

In the ediscovery litigation world, discovery of metadata is still considered controversial. 39 Metadata is covered under Practice Direction CPR 31 2A.1 but the FRCP 40 does not directly address metadata. Metadata being searchable and holding tracking information, it may reveal information about who created a document, who edited it, when changes were made, and what changes were made. Parties who receive records of a type likely to contain metadata are often able to engage in ‘metadata mining’ which may lead to a ‘fishing expedition’. What is not clear is whether a party is free to assume on the one hand that metadata was intentionally produced (and thus is free to ‘mine’ it and take advantage of it) or on the other hand to assume that it was inadvertently produced. In international arbitration, where parties may be from different cultures, metadata may be considered as ‘background’ information revealing the ‘private’ character of the parties. Parties from civil law countries such as France would most likely view this as intrusive and totally unacceptable.
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Impact of Islamic Law on Commercial Sale Contracts – A Private International Law Dimension in Europe

Impact of Islamic Law on Commercial Sale Contracts – A Private International Law Dimension in Europe

2. The voluminous literature on Islamic finance as opposed to Islamic commercial law is omitted unless there is an im- mediate relevance to commercial law. On sources on Islamic commercial law, see generally, Berschadsky, ‘Innovative Financial Securities in the Middle East: Surmounting the Ban on Interest in Islamic Law’, University of Miami Business Law Review (2001), 107; Bilal, ‘Islamic Finance: Alternatives to the Western Model’, Fletcher F. World Aff. (1999), 145; Childress, ‘Saudi-Arabian Contract Law: A Comparative Perspective’, St. Thomas L. F. 2 (1990), 69; Coulson, Com- mercial Law in the Gulf States (London: Graham & Trotman, 1984); Dar & Presley, ‘Lack of Profit Loss Sharing in Islamic Banking’ Int. J. of Islamic Fin. Services 2 (2000), 1; Donboli & Kahsefi, ‘Doing Business in the Middle East: A Primer for U.S. Companies’, Cornell International LJ 38 (2005), 413; El-Gamal, ‘“Interest” and the Paradox of Contemporary Islamic Law and Finance’ Fordham Int’l LJ 27 (2003), 108; El-Gamal, Islamic Finance Law, Economics and Practice (Cambridge, 2006); Foster, ‘Encounters between Legal Systems: Recent Cases concerning Islamic Commercial Law in Secular Courts’, Amicus Curiae (Nov/Dec 2006) 2; Foster, Islamic Commercial Law – An Overview (I) (Barcelona: INDret, 2006); Hafeez, Islamic Commercial Law and Economic Development (San Francisco, USA: Heliographica, 2005); Haji Hasan, Sales and Contracts in Early Islamic Law (Malaysia, 2007; first published Islamic Research Institute, Islamabad, Pakistan, 1994); Hassan, ‘Contracts In Islamic Law: The Principles of Commutative Justice and Liberality’, Journal of Islamic Studies 13:3 (2002), 257; Ibrahim, ‘The Rise of Customary Businesses in International Financial Markets: An Introduction to Islamic Finance and the Challenges of International Integration’, Am. U. Int’l L. Rev. 23 (2008) 661; Khan, ‘Interaction between Shariah and International Law in Arbitration’, Chi. J. Int’l L. 6 (2005-2006), 791; Kutty, ‘The Shari’a Factor in International Commercial Arbitration’, Loy. L.A. Int’l & Comp. L. Rev. 28 (2006), 565; Mallat, Introduction to Middle Eastern Law (esp. ch. 9) (OUP, 2009); Rehman, ‘Globalization of Islamic Finance Law’, Wis. Int’l L.J. 25 (2007-2008), 625; Saleh, Commercial Arbitration in the Arab Middle East: Shari’a, Syria, Lebanon, and Egypt: Shari’a, Lebanon, Syria, and Egypt (Hart Publ., 2006); Sloane, ‘The Status of Islamic Law in the Modern Commercial World’ International Lawyer 22 (1988), 743; Suratgar, ‘The Impact of Islamic Banking on World Financial and Commercial Relations’, Law & Pol’y Int’l Bus. 16 (1984), 1089; Usmani, An Introduction to Islamic Finance (Kluwer, 2002); also relevant materials at <www.ruf.rice.edu/>, <www. islamic-banking.com> and <islamic-finance.net/journals/>. 3. For a useful source of the commercial laws of certain Islamic
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A critical appraisal of the Federal Arbitration Act 1925 and of the suitability of the model law as its replacement for international commercial disputes

A critical appraisal of the Federal Arbitration Act 1925 and of the suitability of the model law as its replacement for international commercial disputes

and securities laws had become well-established emblems of strong regulatory policy. Since then, federal regulation of com­ merce has remained vigorous, arguably increasing. Traditional market policy bulwarks such as the antitrust laws have been joined by newer statutes that similarly encourage private enforcement by authorizing claims for multiple damages and attorney’s fees.44 It can be legitimately questioned whether vigorous policing of trade can be reconciled with commercial actors’ increasing ability to dedicate all facets of their disputes to private adjudication. Expanded subject matter arbitrability, combined with the parties’ ability to choose their arbitrators and the governing law, may invite attempts to evade federal regulations. The obvious tension between party autonomy and regulatory interests persists, and courts have not fully recon­ ciled these competing aims. Neither has the Supreme Court attempted to harmonize what it has termed the “indispensable” practice of fixing fora in advance and the parties’ ability to choose applicable law with the need to enforce vigorously antitrust, anti-racketeering, and other such laws. The decisional centerpiece affecting the topic is Mitsubishi (1985).45
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The International Maritime Law Arbitration Moot Competition (IMLAM) 2014

The International Maritime Law Arbitration Moot Competition (IMLAM) 2014

The moot problem typically involves a commercial shipping dispute, which is to be determined by an arbitral panel according to the LMAA Terms or other equivalent rules. The problem is designed to incorporate difficult but ‘real world’ issues of substantive maritime law in an arbitration context.

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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 appellate arbitration tribunal will remedy the cause for delay by being the body which the parties will ap- proach in case of any disagreements. Such as in determination of the terms of the agreement, Arbitrability or in cases where there is need for application of interim measures. In the case of interim measures, academics have expressed concern over giving the arbitrators such powers. Their concern is founded on the fact that sometimes, the assets that needs to be protected is in another country and the mechanisms of law enforcement of that coun- try is needed to effectively put an injunction or carry out other legal measures as the case may be on the asset. In response to that concern, the writer suggests that as countries enter into reciprocity agreements with other coun- tries to enable them enforce such orders or carry out such measures; the arbitral tribunal can be elevated to that status also. It should be noted here that the proposed arbitral tribunal does not mean advocating that the existing systems of law enforcement be abolished but that the appellate arbitral tribunal be recognized and given that status and backing of law to enable it carry out the functions that the courts undertake in respect to arbitration.
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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

Meanwhile, other civil law jurisdictions are more reserved on the institute of security for costs. For instance, Switzerland has been one of the most controversial states with regard to the authority of arbitrators to order such interim measure. However, under 1989 Private International Law, the arbitrators had the power to order interim measures in general. Although there is no explicit mention of security for costs, many authors have acknowledged that this tool constitutes one of the types of interim measures so we can conclude that Article 183 (1) of the Switzerland Private International Law also includes the power of arbitrators to order security for costs. While for the Swiss domestic arbitration, the 2011 Swiss Civil Procedure Code explicitly allows the arbitral tribunal to impose security for costs. The same approach is also found in French law.
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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

Considering the importance of avoiding unenforceable arbitration agreements or clauses, Moses highlights the importance of selecting an adequate legal framework for the arbitration. In her book, the reader may find certain guidelines enacted by different institutions; 24 for example, the International Bar Association (IBA) promulgated the IBA Guidelines for Drafting International Arbitration Clauses, and the ICDR issued its Guide to Drafting International Dispute Resolution Clauses. These guidelines provide that the parties should include some important elements in the agreement, such as the number of arbitrators (usually one or three depending on the complexity of the dispute), and the place of arbitration. Moses suggests that these decisions, particularly the place of arbitration, should not be left to the discretion of the tribunal or institution because the law of the seat of arbitration will be the law that governs the arbitration, arbitrability, and possibly the arbitration agreement. 25 The guidelines also provide that the parties may include additional stipulations in the agreement, such as the language of arbitration, the substantive law to govern the dispute, confidentiality, legal fees and costs, issues regarding evidence, and technical expertise, among others. However, if the parties have chosen a specific arbitral institution, these provisions might not be necessary. If they have opted for ad hoc arbitration, Moses suggests the UNCITRAL Arbitration Rules to set the procedure that the arbitrators should follow. The purpose of choosing an adequate legal framework, she argues, is to avoid disputes about the framework itself, which could invalidate the arbitration agreement. 26
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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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Arbitration Law in Eastern Europe

Arbitration Law in Eastern Europe

The application of the Russian Law appears to have a different focus, providing only that disputes “may be referred to international commercial arbitration” if “the place of business of at least one of the parties is situated abroad,” or if it is a dispute “arising between enterprises with foreign investment, international associations and organizations established in the territory of the Russian Federation” and between participants of these entities or between these entities and “other subjects of the Russian Federation law.” 26 The Ukrainian Law is almost identical to the Russian Law. 27 The first factor to notice is that these provisions are permissive rather than mandatory, providing that disputes “may be referred” to arbitration under these laws, rather than providing that these laws do apply if certain conditions are met. Furthermore, the parties are not free to apply these laws by agreeing that the subject matter is international, as is the case under the Model Law, and the provision referring to “a substantial part of the obligations” under the contract is also omitted. Thus, the scope of the Russian and Ukrainian Laws seems significantly more limited.
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The Saudi Arabian arbitration law in the international business community: A Saudi perspective

The Saudi Arabian arbitration law in the international business community: A Saudi perspective

The movement towards harmonisation o f international commercial arbitration has become visible even in respect of countries that have historically been seen as 'unfriendly’ to arbitration (see Chapter 3 above). In this context Latin America, Russia and some parts of Asia have developed their laws because they cannot be isolated from international commerce. China, for example, has experienced rapid growth since it started its 'open door’ policy in the 1980s. Coca-Cola, IBM and Nike were no longer powerful and exotic foreign names, but those companies connected with the outside world (Yi Li in Bradlow and Escher 1999:281). International investment enterprises, on the other hand, cannot afford not to ignore India because it is simply too large, since economic liberalisation began in 1991 (Desai in Bradlow and Escher 1999:303). Colombia, as a third example, is the only country in South America with coasts on both the Atlantic and Pacific Oceans, and it has been developing commercial ties with the Far East (Acevedo in Bradlow and Escher 1999:439). Based on the above, these countries have many things in common that made them develop their arbitration laws. In this chapter we will go to different parts of the world to see what steps have been taken to harmonise their arbitration laws with international minimum standards o f arbitration. It seems that Foreign Direct Investment moreover is seen as one of the reasons why countries with different economic backgrounds have developed their arbitration systems. Therefore it is relevant to highlight FDI as a reason for developing arbitration.
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Joint Columbia Law School - Chartered Institute of Arbitrators Course on International Arbitration

Joint Columbia Law School - Chartered Institute of Arbitrators Course on International Arbitration

This course, having occurred over the span of a full week, provided a systematic and comprehensive examination of the law and practice of international commercial arbitration. The course involved both lecture and interactive segments. The course was jointly provided by Columbia University School of Law, through its Center for International Commercial and Investment Arbitration (CICIA), and the New York Branch of the Chartered Institute of Arbitrators. The course was held at the New York International Arbitration Center (NYIAC) at 150 E. 42nd St.
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Sanctions and International Arbitration

Sanctions and International Arbitration

In the ICC Arbitration Fincantieri v. Ministry of Defense of Iraq, 14 two Italian ship- building companies had each concluded an agency contract with a Syrian national in view of the sale of military goods to Iraq. Iraq however had fallen subject to UN sanctions following the adoption of a UN Security Council Resolution in August 1990. 15 The Syrian agent brought arbitration proceedings against the two Italian companies to obtain payment of the commissions due to him by the two companies. The two Italian companies however invoked the inarbitrability of the dispute in view of the sanctions imposed by the Security Council on Iraq, which in effect prohibited any commercial transactions with Iraq. The arbitral tribunal, in an interim decision, distinguished the application of the sanctions regime as a matter of mandatory law to the merits of the dispute from the arbitrability of the dispute, and confirmed that the occurrence of the former does not result in the inarbitrability of the dispute and that the application of the sanctions regime does not affect the competence of the arbitral tribunal, which in this case had its seat in Switzerland. 16 The two Italian companies sought nullification of the interim decision before the Swiss courts. The Swiss Federal Tribunal supported the arbitral tribunal’s interim decision to confirm jurisdiction by considering the case arbitrable, basing its decision on Art. 177 of the Swiss Private International Law Act (PILA), which contains a broad definition of arbitrability, which allows parties to arbitrate ‘toute cause de nature patrimoniale’ 17 . The Swiss Federal Tribunal noted that, as a consequence, in principle, the dispute may be arbitrated. However, it also enquired whether the arbitrability of the dispute may nonetheless be contrary to the international public order of Switzerland. In this respect, the Tribunal opined that public order considerations do not render the dispute inarbitrable since such considerations would have this effect only to the extent that a dispute could only be submitted to domestic courts, as a result of such considerations,. In this case, in line with its earlier findings, the Swiss Federal Tribunal considered that the existence of a sanctions regime only operates at the level of the contractual commitments of the parties, and does not affect the arbitrability of the dispute. 18
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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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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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DETERMINING THE LAW GOVERNING THE NATURE OF A    CASE IN INTERNATIONAL ARBITRATION Author(s):                        Amir Teymoor Musaviyan

DETERMINING THE LAW GOVERNING THE NATURE OF A CASE IN INTERNATIONAL ARBITRATION Author(s): Amir Teymoor Musaviyan

Foreign investment plays a key role in economic development. Indeed, it is this type of investment that provides the necessary economic factors, namely investment and technical knowledge, for economic growth. Advent of new means of global communication and advances made in a wide range of science fields has led to enormous and more complicated international transactions. The resulting disputes and complication are obviously beyond the scope of local courts which deal with local lawsuits. In fact, many international commercial disputes referred to local courts led to lengthy and expensive court hearings and has caused a number of problems for the parties involved. Furthermore, international arbitration was established and was later improved to an extent that in most international business contracts, both parties agree that should any dispute arise in connection with their contract, they will resolve it through international commercial arbitration. Therefore, determining the law governing international commercial arbitration is of paramount importance. This paper aims to analyze various theories on determining the law that governs arbitral vote.
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INTERNATIONAL INVESTMENT LAW AND ARBITRATION:

INTERNATIONAL INVESTMENT LAW AND ARBITRATION:

The question of the meaning and scope of observance of undertakings clauses resurfaced subsequently in SGS v. Philippines. The solution reached by the Tribunal in that case again contrasted with the one reached in SGS v. Pakistan. There are in fact three different approaches to this type of clause, as reflected in SGS v. Pakistan and SGS v. Philippines. The first approach simply denies any effect to the observance of undertakings clause and does not consider that the breach of a contract may amount to a violation of the investment treaty. This is the conclusion that was reached by the Tribunal in SGS v. Pakistan with respect to the dispute before it. The same reasoning was recently adopted in Joy Mining v. Egypt, where the claimant argued that the Tribunal had jurisdiction over disputes sounding in contract on the basis of the umbrella clause contained in Article 2(2) of the BIT between the United Kingdom and Egypt and, in the alternative, on the basis of the dispute resolution clause of the treaty. The Tribunal held that the disputes at issue, which related to the release of bank guarantees, were commercial and contractual disputes to be settled through the mechanism set forth by contract:
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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

This work purports to analyse the process of the harmonisation of the law of international commercial arbitration with particular reference to the drafting and diffusion of uniform rules. In the first chapter a theoretical framework is developed to investigate the effects of globalisation on law and international relations, introducing the concepts of legitimacy of global governance, epistemic communities and norm diffusion as elaborated in International Relations theory. The second chapter analyses the debate on the harmonisation of international trade law and outlines the main techniques, means and actors of this process, with particular reference to their membership, statutory purposes and most of all the decision-making methods followed in the production of uniform rules. The following chapters analyse the travaux préparatoires of the main harmonisation tools of the law of international commercial arbitration, namely the UNCITRAL Model Law on International Commercial Arbitration, the UNIDROIT Principles of International Commercial Contracts, and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, with a view to assessing their impact on national jurisdictions, national courts and arbitral tribunals. The main findings of this survey are twofold. First, a common decision-making method within the “formulating agencies” in charge of drafting the uniform rules of the law of international commercial arbitration is emerging. Although formally inter-governmental bodies made up of state representatives, these formulating agencies do not follow the traditional decision-making process founded on bargaining and unanimity (or majority) voting, which is typical of international law- making. Their membership resembles more that of an “epistemic community”, i.e. a group of experts who are constantly attempting to reach a consensus rather than a majority or unanimity and whose interests, proposals and positions are not fixed, but are susceptible to being changed whenever a better argument founded on reasonable grounds is put forward. Second, these uniform rules are characterised by a strong level of hybridation, in which the distinction between hard and soft law tends to blur. Accordingly, the increasing level of harmonisation of the law of international commercial arbitration can be read as a process leading to the creation of a hybrid legal order, combining both a state-centric system (organized essentially around the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards and the various national arbitration laws) and a multi-centric system made up of a complex network of private contracts, non-national norms elaborated by formulating agencies and international arbitral institutions, as well as customs and general principles of law.
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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

Globalization is sitting in the catbird seat in our era. Recent decades, therefore, have witnessed that international commercial transactions are booming in terms of their size and sophistication. M.N.Es (multinational enterprises) usually include arbitration clauses in their transactions to navigate the risks that come with foreign jurisdiction and to protect their investment at stake. Such international business transactions often involve a myriad of contracts and parties. Hence, these transactions engender a variety of disputes. It is inevitable that when such a dispute arises, it will have a bearing on almost all of the parties' interest in the transaction. It would be ill-defined and vague to state that only parties who agree to arbitrate can be included in the proceedings since non-signatory parties can become a part of proceedings through a few special theories of law. Arbitrators, most often in the interest of fairness, feel compelled by circumstances to reach beyond the specific parties to an arbitration agreement.
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