The Arbitrator S Discretion In Conflict Of Laws Matters
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The Arbitrator S Discretion In Conflict Of Law Matters
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Author : Anna M. Lohmann
language : en
Publisher:
Release Date : 2022-02-28
The Arbitrator S Discretion In Conflict Of Law Matters written by Anna M. Lohmann and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2022-02-28 with categories.
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.
Conflict Of Laws And Arbitral Discretion
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Author : Benjamin Hayward
language : en
Publisher:
Release Date : 2017-01-05
Conflict Of Laws And Arbitral Discretion written by Benjamin Hayward and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2017-01-05 with categories.
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.
Choice Of Forum And Laws In International Commercial Arbitration
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Author : Peter Edward Nygh
language : en
Publisher: Kluwer Law International
Release Date : 1997
Choice Of Forum And Laws In International Commercial Arbitration written by Peter Edward Nygh and has been published by Kluwer Law International this book supported file pdf, txt, epub, kindle and other format this book has been release on 1997 with Law categories.
International commercial arbitration raises issues other than the choice of the law applicable to the principal contract. Autonomy may have a wider meaning, extending beyond the choice of applicable law to the choice of arbitration itself, and of the place or places where it is to be conducted. Nor is it altogether clear what the forum is, if any. This paper raises the fundamental question of what gives the arbitrator his or her competence--the will of the parties or the law of the seat of arbitration which the parties may, or may not, have chosen? The paper also suggests an answer to the questions of which choice of law rules, if any, should be applied by the arbitrators, to what extent arbitrators will apply mandatory rules (règles d'application immédiate), as well as which law governs the procedural aspects and whether it has to be the procedural law of a national system. The new English Arbitration Act 1996 has also been taken into account.
Due Process As A Limit To Discretion In International Commercial Arbitration
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Author : Franco Ferrari
language : en
Publisher: Kluwer Law International B.V.
Release Date : 2020-09-25
Due Process As A Limit To Discretion In International Commercial Arbitration written by Franco Ferrari 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 2020-09-25 with Law categories.
The absence of a coherent body of case law on due process has increasingly motivated recalcitrant parties to use due process as a strategic tool, thereby putting at risk the prospect of obtaining an enforceable award in expeditious proceedings. Countering this inherent danger, here for the first time is a comprehensive study on due process as a limit to arbitral discretion, showing how due process applies in practice in key jurisdictions around the world. Based on country reports prepared by leading arbitration practitioners and academics, the book explores how courts in major arbitration jurisdictions apply due process guarantees when performing their post-award review. The contributors, driven by an interest in exploring the interplay between due process and efficiency, focus on those due process guarantees that set limits to arbitral discretion. Matters covered include the following: the right to be heard and how it may be affected by submission deadlines, evidentiary offers by the opposing party, and directions to the parties as to which aspects require further pleading; the right to be treated equally and its interplay with the duty to give each party full opportunity to present its case and to comment on submissions and evidence filed by the other party; the duty to effect proper notice, including delivery and language issues; the independence and impartiality of arbitrators with a focus on when an arbitrator’s conduct can become the basis for a successful challenge; and courts’ standards of deference when examining issues arising at the post-award stage. An introductory general report thoroughly analyses the normative basis of due process and its interplay with party autonomy, as well as applicable standards of review and commonalities among manifestations of due process across jurisdictions. A signal contribution to the debate regarding the so-called due process paranoia affecting arbitral tribunals – a topic relevant in every single arbitration proceeding – this book provides practical guidelines on how to maintain the balance between due process and efficiency and how to apply due process and counteract its misuse in arbitration proceedings. It will be welcomed by counsel, arbitrators, and judges from all countries, as well as by academics and researchers concerned with international commercial arbitration.
Investment Treaty Arbitration And International Law Volume 8
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Author : Ian A. Laird
language : en
Publisher: Juris Publishing, Inc.
Release Date : 2015-03-01
Investment Treaty Arbitration And International Law Volume 8 written by Ian A. Laird 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 2015-03-01 with Conflict of laws categories.
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
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.
The Arbitrator S Discretion In Conflict Of Laws Matters
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Author : Anna M. Lohmann
language : en
Publisher: Nomos Verlag
Release Date : 2022-02-28
The Arbitrator S Discretion In Conflict Of Laws Matters written by Anna M. Lohmann and has been published by Nomos Verlag this book supported file pdf, txt, epub, kindle and other format this book has been release on 2022-02-28 with Law categories.
Internationale Schiedsverfahren und CISG bilden eine neutrale Plattform für internationale Handelsstreitigkeiten. Allerdings ist unklar, ob Schiedsrichter das CISG überhaupt anwenden müssen. Diese Arbeit untersucht zunächst die Rechtsnatur der Anwendungsnormen des CISG, mit dem Ergebnis, dass es sich um Internationales Privatrecht handelt. Dies führt zu der grundsätzlichen Frage nach der Bindung von Schiedsrichtern an IPR, in deren Prüfung völker- und europarechtliche sowie rechtspraktische Aspekte einbezogen werden. Eine Bindung wird abgelehnt. Schließlich wird ergänzend ein Blick auf die Bindungswirkung von materiellem Recht in Schiedsverfahren geworfen.
Arbitration Of International Business Disputes Studies In Law And Practice
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Author : William W. Park
language : en
Publisher: OUP Oxford
Release Date : 2012-09-20
Arbitration Of International Business Disputes Studies In Law And Practice written by William W. Park and has been published by OUP Oxford this book supported file pdf, txt, epub, kindle and other format this book has been release on 2012-09-20 with Law categories.
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.
International Arbitration
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Author : Gary Born
language : en
Publisher:
Release Date : 2012
International Arbitration written by Gary Born and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2012 with Arbitration (International law) categories.
"International Arbitration: Law and Practice" provides a concise overview of the legal principles and practice of international arbitration. The book offers an accessible, straightforward introduction to the legal framework for international commercial arbitration, including discussions of international arbitration agreements, international arbitral procedures and international arbitral awards. It also provides an introduction to international investment arbitration, including a discussion of the ICSID Convention and issues arising under bilateral investment treaties, and state-to-state arbitration. "International Arbitration: Law and Practice" also provides descriptions of the contemporary practice and tactics of international arbitration. Among other things, it addresses the drafting of arbitration clauses, selection and challenge of arbitrators, structure of arbitral proceedings, process of disclosure or discovery, witness preparation and testimony, conduct of evidentiary hearings and other key procedural steps in international arbitrations. The book contains an Introduction and three principal Parts: Part I: International Arbitration Agreements, including the separability presumption, choice of law issues, competence-competence doctrine, recognition and enforcement of arbitration agreements, formation and validity, formal validity and writing requirements, interpretative issues, non-signatory doctrines and multi-party/multi-contract issues. Part II: International Arbitral Proceedings, including importance and choice of arbitral seat, selection and challenge of arbitrators, parties' procedural autonomy, arbitrators' procedural discretion, conduct of arbitral proceedings, disclosure and discovery, provisional measures, choice of substantive law, confidentiality, consolidation and intervention. Part III: International Arbitral Awards, including form and content of awards, relief, costs, forums for annulment of awards, grounds for annulment or set-aside of awards, recognition and enforcement of awards, preclusion and precedent, and recognition of annulled awards.
A Guide To The Icdr International Arbitration Rules
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Author : Martin F. Gusy
language : en
Publisher: OUP Oxford
Release Date : 2011-04-07
A Guide To The Icdr International Arbitration Rules written by Martin F. Gusy and has been published by OUP Oxford this book supported file pdf, txt, epub, kindle and other format this book has been release on 2011-04-07 with Law categories.
A rule-by-rule commentary on the genesis, interpretation and application of the International Centre for Dispute Resolution (ICDR) Rules. The book is designed to give arbitrators, practitioners and academics a first port of call when considering ICDR arbitration, and provide the first stand-alone comprehensive commentary on these important rules.