Fact Finding In International Arbitration
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Procedure And Evidence In International Arbitration
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Author : Jeffrey Waincymer
language : en
Publisher: Kluwer Law International B.V.
Release Date : 2012-05-23
Procedure And Evidence In International Arbitration written by Jeffrey Waincymer and has been published by Kluwer Law International B.V. this book supported file pdf, txt, epub, kindle and other format this book has been release on 2012-05-23 with Law categories.
Central to the book’s purpose is the procedural challenge facing arbitrators at each and every stage of the arbitral process when fairness arguments conflict with efficiency concerns and trade-offs must be determined. Some key themes include how can a tribunal be fair, and in particular be neutral, if parties are so diverse? How can arbitration be made efficient and cost-effective without undue inroads into fairness and accuracy? How does a tribunal do what is best if the parties are choosing a suboptimal process? When can or must an arbitrator ignore procedural choices made by the parties? The author thoroughly evaluates competing arguments and adds his own practical tips, expertly synthesizing and engaging with the conference literature and differing authors’ views. He identifies criteria that offer a harmonized approach to each stage of the arbitral process, with particular attention to such aspects of international arbitration as: appropriate trade-offs between flexibility and certainty; the rights, duties and powers of arbitrators; appointment and challenge of arbitrators; responses to ‘guerilla’ tactics; drafting of arbitration agreements, including specialty clauses; drafting of required commencement notices and response documents; set-off; fast track arbitration and other efficiency options; strategic use of preliminary conferences and timetabling; online arbitration; multi-party, multi-contract, class arbitration; amicus and third party funders; pre-arbitral referees and interim relief; witness evidence, both factual and expert; documentary evidence, production obligations, and challenges to production; identifying applicable law; and remedies and costs.
Fact Finding In International Arbitration
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Author : Julian Bickmann
language : en
Publisher: Kluwer Law International B.V.
Release Date : 2022-12-09
Fact Finding In International Arbitration written by Julian Bickmann and has been published by Kluwer Law International B.V. this book supported file pdf, txt, epub, kindle and other format this book has been release on 2022-12-09 with Law categories.
Establishing a factual basis on which to apply the law can be an extraordinarily challenging process, and perhaps more so in international arbitration than in any other proceedings, due to the very different notions of fact-finding that prevail among jurisdictions. This important book assesses, for the first time, the contours of an emerging transnational law of fact-finding that promises to greatly enhance the efficiency and reliability of this crucial arbitral procedure. In his analysis, focusing on bases that reflect current (but fluid) transnational practice, the author assembles a viable lex evidentiae from an in-depth examination and synthesis of the following bodies of source material: published arbitration proceedings and awards; the general framework of fact-finding issues as provided for under the arbitration acts of England and Wales, the United States, Germany, Brazil, Spain, Switzerland, Austria, and Italy, as well as under the Model Law; fact-finding stipulations under UNCITRAL Arbitration Rules as well as under various institutional rules; soft law (such as the IBA Rules, Prague Rules, ALI/UNIDROIT Principles of Transnational Civil Procedure); best practices as captured by legal commentary; and investment arbitration proceedings, where many decisions and awards are nowadays publicly available. In the course of the analysis, a comprehensive description and analysis of what fact-finding entails, including both gathering of facts and taking of evidence, is fully elaborated. Given that it is an essential task of international arbitration proceedings to define the disagreements between the parties and seek to determine the truth, the international arbitration community must be able to rely on a robust, consistent, and predictable, albeit flexible and adaptive, set of fact-finding rules. Against this background, the present study not only provides a stocktaking of current practice but also makes a signal contribution to meeting the need for legal certainty and reliability in international arbitration.
Fact Finding Before International Tribunals
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Author : Richard Lillich
language : en
Publisher: Martinus Nijhoff Publishers
Release Date : 2025-01-27
Fact Finding Before International Tribunals written by Richard Lillich and has been published by Martinus Nijhoff Publishers this book supported file pdf, txt, epub, kindle and other format this book has been release on 2025-01-27 with Business & Economics categories.
This volume is the seminal work on fact-finding and international tribunals. It addresses the many questions raised in recent cases before the International Court of Justice, the Iran-United States Claims Tribunal, the European Court of Justice, various international administrative tribunals, human rights courts, and commissions. Its 15 chapters, introduced by a perceptive essay by Judge Schwebel for the International Court of Justice, have been written by present or former members of such international bodies, leading lawyers who have appeared before them, and distinguished academic lawyers from the United States and abroad. Published under the Transnational Publishers imprint.
Evidence Proof And Fact Finding In Wto Dispute Settlement
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Author : Michelle T. Grando
language : en
Publisher: Oxford University Press
Release Date : 2009-12-24
Evidence Proof And Fact Finding In Wto Dispute Settlement written by Michelle T. Grando and has been published by Oxford University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2009-12-24 with Law categories.
This book examines how a World Trade Organization (WTO) dispute settlement panel formulates its conclusions with respect to the facts of a dispute brought before it. It does so by discussing the legal concepts which shape the process of fact-finding, analysing the approach taken by panels thus far and offering suggestions for improvement.
Search For Truth In Arbitration Is Finding The Truth What Dispute Resolution Is About Asa Special Series No 35
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Author : Marcus Wirth
language : en
Publisher: Juris Publishing, Inc.
Release Date : 2011-08-01
Search For Truth In Arbitration Is Finding The Truth What Dispute Resolution Is About Asa Special Series No 35 written by Marcus Wirth and has been published by Juris Publishing, Inc. this book supported file pdf, txt, epub, kindle and other format this book has been release on 2011-08-01 with Law categories.
This volume of the ASA Special Series contains the written version of the presentations given at the ASA 2009 Annual Conference on "The Search for "Truth" in Arbitration: Is finding the Truth what Dispute Resolution is about?" This volume explores the role and the relevance of "truth" in dispute resolution and specifically in commercial arbitration; the different notions of truth in different legal cultures; the users' view in that respect; and the consequences of these different perspectives and approaches for the practice of international arbitration. Part one provides the "philosophical" background to the subsequent discussions of some practical issues from the perspective of the users of arbitration services as well as of the providers of these services, arbitrators and counsel. Next, two practical issues that have for a long time been a hot topic in commercial arbitration practice, cross-examination and document production, are expolored from different perspectives. Finally formalism in arbitral proceedings is discussed – is formalism good or evil? It has been concluded that formal requirements should never be handled in a way that would hinder a tribunal or a court from accomplishing the main task with which it was entrusted either by the parties or by the State: applying the substantive law to the issues before them and finding a just and fair solution to the parties' dispute. The presentations published in this volume of the ASA Special Series will contribute to the discussion of the ever intriguing question "Is Finding the "Truth" what Dispute Resolution is about?"
Evidence In International Litigation
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Author : Chittharanjan F. Amerasinghe
language : en
Publisher: BRILL
Release Date : 2005-06-01
Evidence In International Litigation written by Chittharanjan F. Amerasinghe and has been published by BRILL this book supported file pdf, txt, epub, kindle and other format this book has been release on 2005-06-01 with Law categories.
This book presents a well-defined analysis of the basic principles of evidence deriving them from the general rule of procedure requiring a “fair trial”, which is a fundamental human right. The basic principles relating to the burden of proof, cooperation in the production of evidence as well as the standard of proof, among others, are examined by reference to worldwide international jurisprudence and policies. Specific practice in special situations of certain tribunals such as the ICJ and the ICTY, as well as other issues, such as the flexibility shown in dealing with differences in tribunal practice in relation to the applicable principles are discussed in considerable detail in the second section. This work will be of interest to practitioners involved in the current practice of these courts and tribunals as well as academics studying comparative and international law.
The Culture Of International Arbitration
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Author : Won Kidane
language : en
Publisher: Oxford University Press
Release Date : 2017
The Culture Of International Arbitration written by Won Kidane and has been published by Oxford University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2017 with Law categories.
This book offers an in-depth study of the role of culture in modern day arbitral proceedings. It contains a detailed analysis of how cultural miscommunication affects the accuracy, efficiency, fairness, and legitimacy in both commercial and investment arbitration when the arbitrators and the parties, their counsel and witnesses come from diverse legal traditions and cultures. The book provides a comprehensive definition of culture, and methodically documents and examines the epistemology of determining facts in various legal traditions and how the mixing of traditions influences the outcome.
Carbonneau On International Arbitration
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Author : Thomas E. Carbonneau
language : en
Publisher: Juris Publishing, Inc.
Release Date : 2011-01-01
Carbonneau On International Arbitration written by Thomas E. Carbonneau and has been published by Juris Publishing, Inc. this book supported file pdf, txt, epub, kindle and other format this book has been release on 2011-01-01 with Arbitration and award, International categories.
The chapters of this volume represent the majority of Professor Carbonneau’s scholarly writings on the subject of international commercial arbitration. They reflect his interest over the course of thirty years of law-teaching in international litigation, comparative law, and-of course - international arbitration. Some of the chapters are of a recent vintage, while others were written a decade or two ago. Whatever their date of production, the chapters have a continuing professional interest. Each addresses some of the major issues of trans-border arbitration law. A number of chapters emphasize the importance of courts in developing and maintaining a legal culture that is hospitable to arbitration. The work of the courts has been instrumental to the reception of arbitration in the United States and in several European jurisdictions. The courts can “make or break” arbitration by upholding arbitration agreements and enforcing arbitral awards. Other chapters underscore that arbitration can operate as a complete legal system. It not only provides workable trial procedures, but arbitrators can also create law in their rulings. With the addition of an internal arbitral appellate mechanism, arbitrations can function with almost absolute independence. The world law on arbitrations seems to favor the “a-national” and “a-juridical” operation of the arbitral process. A few of the chapters recognize that arbitration is being increasingly employed to resolve political or mixed political and commercial disputes. Investment arbitration and BITs are the most recent expression of this development; it had been apparent in WTO and NAFTA dispute resolution. The Iran-U.S. Claims Tribunal presented the first great occasion for assessing the vocation of arbitration in a mixed dispute situation. While arbitration has made significant inroads in this area, political sovereignty remains resistant to the imposition of limitations. In many less visible “political” cases, determinations are nonetheless made and rendered enforceable. The concluding chapters address more specific developments in the field of ICA. A number of cases point to the strong, perhaps overweening, support of the judiciary for arbitration. The courts in some jurisdictions support arbitration unequivocally and are bent upon a single outcome no matter the impact on doctrine. Lawyer presence in the arbitral process has lead to increased formalization in some proceedings. The “judicialization” of arbitration tilts the process toward the protection of rights and hinders its ability to function effectively and reach finality. Lawyers can readily misunderstand and undermine the gravamen of arbitration. The concluding chapters also establish that the UK Arbitration Act 1996 is one of the world’s outstanding arbitration statutes. It rivals and bests the UNCITRAL Model Law on ICA and is the equal of the French codified law on arbitration. Finally, the express text of the New York Arbitration Convention appears to have been altered significantly by court practice. The possible limitations of national law have been neutralized and the provisions of the Convention articulate a truly trans-border regulation of the enforcement of awards. In sum, the chapters in this book reflect the author's lifetime work in the area of international arbitration and are required reading for all those practicing in the field- law students, arbitrators, academics and practicing lawyers.
International Arbitration And The Rule Of Law
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Author :
language : en
Publisher: Kluwer Law International B.V.
Release Date : 2017-09-22
International Arbitration And The Rule Of Law written by and has been published by Kluwer Law International B.V. this book supported file pdf, txt, epub, kindle and other format this book has been release on 2017-09-22 with Law categories.
Volume 19 of the Congress Series contains the proceedings of ICCA's 2016 Mauritius Congress, the first ICCA Congress held in Africa. In this volume, renowned practitioners, scholars and jurists from the region and around the world explore the contribution of arbitration to the rule of law and economic development; the conformity of arbitration with international standards of due process and the rule of law; and the benefits and challenges of arbitration in Africa. Topical issues of interest for practitioners, academics and students of arbitration - in the region and internationally - include: • Due process issues in constituting the arbitral tribunal and challenging its members • Interim measures issued by arbitral tribunals and domestic courts • Burden, standard and types of proof in the corruption defence • What to do (and what to avoid doing) to prepare a persuasive case • Do post-award remedies ensure conformity of the arbitral process with the rule of law? • Do rules and guidelines properly regulate the conduct of arbitration? • The interface between domestic courts and arbitral tribunals • What are appropriate remedies for findings of illegality in investment arbitration? • The effect of foreign national court judgments relating to the arbitral award • What does the future hold for investment arbitration in Africa and beyond?
Fact Finding Without Facts
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Author : Nancy A. Combs
language : en
Publisher: Cambridge University Press
Release Date : 2010-07-30
Fact Finding Without Facts written by Nancy A. Combs and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2010-07-30 with Law categories.
Fact-Finding Without Facts explores international criminal fact-finding - empirically, conceptually, and normatively. After reviewing thousands of pages of transcripts from various international criminal tribunals, the author reveals that international criminal trials are beset by numerous and severe fact-finding impediments that substantially impair the tribunals' ability to determine who did what to whom. These fact-finding impediments have heretofore received virtually no publicity, let alone scholarly treatment, and they are deeply troubling not only because they raise grave concerns about the accuracy of the judgments currently being issued but because they can be expected to similarly impair the next generation of international trials that will be held at the International Criminal Court. After setting forth her empirical findings, the author considers their conceptual and normative implications. The author concludes that international criminal tribunals purport a fact-finding competence that they do not possess and, as a consequence, base their judgments on a less precise, more amorphous method of fact-finding than they publicly acknowledge.