Journal of International Arbitration, Volume 27, Number 1, 2010

• Bernard Hanotiau, 'In Memoriam Robert Briner' (2010) 27 Journal of International Arbitration pp. i–ii
• Ilias Bantekas, 'The Proper Law of the Arbitration Clause: A Challenge to the Prevailing Orthodoxy' (2010) 27 Journal of International  Arbitration pp. 1–8
• Thomas Bevilacqua, Ricardo Ugarte, 'Ensuring Party Equality in the Process of Designating Arbitrators in Multiparty Arbitration: An Update on the Governing Provisions' (2010) 27 Journal of International Arbitration pp. 9–49
• Sameer Sattar, 'National Courts and International Arbitration: A Double-edged Sword?' (2010) 27 Journal of International Arbitration pp. 51–73
• Saloni Kantaria, 'The Challenges of Enforcing an Arbitral Award Against a Foreign State in the United States' (2010) 27 Journal of International Arbitration pp. 75–87
• Simon Chapman, 'Multi-tiered Dispute Resolution Clauses: Enforcing Obligations to Negotiate in Good Faith' (2010) 27 Journal of International Arbitration pp. 89–98

 

Summaries

 


Ilias Bantekas, 'The Proper Law of the Arbitration Clause: A Challenge to the Prevailing Orthodoxy' (2010) 27 Journal of International Arbitration pp. 1–8

It has recently been established, at least before English courts, that where the parties have failed to set out the proper law of the arbitration clause, this is necessarily, and by mandatory default, the law of the seat of the arbitration. The justification for this assumption is that if this were not so, then the parties may have access to two distinct curial laws. This assumption in favor of the law of the seat, however, goes against the ordinary assumption that in the absence of a contrary provision by the parties, the law applicable to the arbitration clause will follow the proper law of the contract. Moreover, the justification offered by the courts is pointless in circumstances where the parties in fact designate the law governing the arbitration clause which is contrary to the law of the seat. Ultimately, it is up to the arbitrators and the courts of the lex arbitri to decide on any conflicts of civil procedure law that may arise.
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ISSN: 0255-8106
ID: JOIA2010002

 

Thomas Bevilacqua, Ricardo Ugarte, 'Ensuring Party Equality in the Process of Designating Arbitrators in Multiparty Arbitration: An Update on the Governing Provisions' (2010) 27 Journal of International Arbitration pp. 9–49

Summary:

The arbitration world has long struggled with how best to ensure fairness in the appointment of arbitrators in disputes among three or more parties. The French Cour de cassation’s 1992 Dutco decision is widely credited with calling attention to the question and with spurring leading arbitration institutes to revise their rules to address the appointment process in multiparty cases. Although the solutions adopted differ in some particulars, most major sets of rules now either permit, or else require, the institute to designate the entire tribunal in certain multiparty instances. A number of national arbitration laws also address the question in various ways, with one common thread existing in a sizeable subset of these laws: their protective provisions apply whenever one party enjoys a privileged role in the designation process. This article also examines the relatively modest body of arbitral and judicial precedents existing on the question, and this examination reveals two emerging trends: treating multiple parties named on the same “side” of a dispute as a single entity, and finding that those multiple parties have similar interests. Either of these “solutions” allows multiparty arbitrations to be handled as if they were classic bipartite arbitrations, and for difficulties in the constitution of tribunals to be avoided. The authors conclude that the simplest solution is for parties more routinely to use their arbitration agreements to empower respected arbitration institutes to appoint the entire tribunal, either in all cases or upon the appearance of a disagreement as to a designation among multiple parties on either side.
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ISSN: 0255-8106
ID: JOIA2010003

 

Sameer Sattar, 'National Courts and International Arbitration: A Double-edged Sword?' (2010) 27 Journal of International Arbitration pp. 51–73

Summary:

International arbitrations play a key role in resolving cross border commercial disputes. Parties choose international arbitration primarily because it enables the parties to have their disputes adjudicated without any involvement of national courts. It is clear that the supervisory role of national courts is necessary for the proper conduct of international arbitrations and to ensure that the arbitral process meets the due standards of fairness. However, in recent times, the involvement of national courts in aid of effective arbitrations seems to be a growing concern since their involvement tends to hinder the arbitral process rather than protecting the same. In many cases, it can be seen that the supervisory and curial powers are being misused by national courts, the victims of which are parties to international arbitrations. This is most apparent in the Asian subcontinent. This paper discusses in detail the problems arising out of the national court’s role in international arbitrations and highlights few of the leading cases where the national court’s involvement has adversely affected international arbitrations. It also notes the possible dangers associated with undue interferences by national courts which may give rise to state liability under international law. In this connection, the recent landmark decision of Saipem v. Bangladesh is analyzed which sends a clear warning to all national courts exercising supervisory jurisdiction over international arbitrations to exercise their powers cautiously.
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ISSN: 0255-8106
ID: JOIA2010004

 

Saloni Kantaria, 'The Challenges of Enforcing an Arbitral Award Against a Foreign State in the United States' (2010) 27 Journal of International Arbitration pp. 75–87

Summary:

A party seeking to enforce an arbitral award against a sovereign state or stage agency in the United States may face practical challenges due to the Foreign Sovereign Immunities Act (FSIA). In particular, the FSIA presents two hurdles which must be crossed by an arbitral award. This article will consider these hurdles and discuss whether the United States is an appropriate forum for a party seeking to enforce an arbitral award against a foreign state or agency, and whether the FSIA puts an arbitral award holder in an inferior position to a sovereign state or agency by granting it excessive immunity.
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ISSN: 0255-8106
ID: JOIA2010005

 

Simon Chapman, 'Multi-tiered Dispute Resolution Clauses: Enforcing Obligations to Negotiate in Good Faith' (2010) 27 Journal of International Arbitration pp. 89–98

Summary:

A recent Australian decision enforcing a multi-tiered arbitration clause requiring the parties to hold “genuine and good faith negotiations” attempts to give legal effect to the (frequently expressed) intentions of commercial parties. However, the decision raises a number of concerns about how any obligation to negotiate in “good faith” should be defined. This article explores these issues in greater detail, contrasting the position in Australia with that in England and Wales.
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ISSN: 0255-8106
ID: JOIA2010006

Journal of International Arbitration, Volume 27, Number 2, 2010

• Michael Pryles, 'The Kaplan Lecture 2009 – When is an Arbitration Agreement Waived?' (2010) 27 Journal of International Arbitration pp. 105–139
• Alberto Alvarez-Jiménez, 'Foreign Investment Protection and Regulatory Failures as States’ Contribution to the State of Necessity under Customary International Law – A New Approach Based on the Complexity of Argentina’s 2001 Crisis' (2010) 27 Journal of International Arbitration pp. 141–177
• Albert Jan van den Berg, 'Enforcement of Arbitral Awards Annulled in Russia – Case Comment on Court of Appeal of Amsterdam, April 28, 2009' (2010) 27 Journal of International Arbitration pp. 179–198
• Simon Greenberg, Flavia Mange, 'Institutional and Ad Hoc Perspectives on the Temporal Conflict of Arbitral Rules' (2010) 27 Journal of International Arbitration pp. 199–213

 

Summaries

 

Michael Pryles, 'The Kaplan Lecture 2009 – When is an Arbitration Agreement Waived?' (2010) 27 Journal of International Arbitration pp. 105–139

Summary:

Article II(3) of the New York Convention requires a court to enforce an arbitration agreement unless it is “null and void, inoperative or incapable of being performed.” It is widely accepted that a party can waive its right to arbitrate a dispute and that this constitutes an instance where the arbitration agreement becomes “inoperative.” What is more difficult to discern is what conduct by a party will amount to a waiver of its right to arbitrate. This article examines the rich body of case law that has developed in Australia on waiver. It also surveys certain preliminary questions and more generally the exceptions to enforcement of an arbitration agreement contained in the New York Convention.
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ISSN: 0255-8106
ID: JOIA2010008

 

Alberto Alvarez-Jiménez, 'Foreign Investment Protection and Regulatory Failures as States’ Contribution to the State of Necessity under Customary International Law – A New Approach Based on the Complexity of Argentina’s 2001 Crisis' (2010) 27 Journal of International Arbitration pp. 141–177

Summary:

The customary norm of necessity contains several requirements that must be cumulatively met, one of them being that the state invoking the excuse cannot have substantially contributed to the situation of necessity. However, the NAFTA tribunals in S.D. Myers and GAMI recognized that adverse consequences for foreign investors caused by wrong regulatory choices could not be considered as a violation of the minimum standard of treatment. Implicit in this finding is the premise that perfection is not the standard regarding the quality of abstract regulation. If this is so, the question that needs to be answered is how courts and tribunals should evaluate the issue of a crisis prompted by the failure of regulation of this character, when interpreting the customary rule of necessity. The purpose of this article is to draw on the factual richness of Argentina’s 2001 crisis to develop a framework of analysis that permits courts and tribunals to evaluate regulatory failures as contributors to the situation of necessity under customary international law.
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ISSN: 0255-8106
ID: JOIA2010009

 

Albert Jan van den Berg, 'Enforcement of Arbitral Awards Annulled in Russia – Case Comment on Court of Appeal of Amsterdam, April 28, 2009' (2010) 27 Journal of International Arbitration pp. 179–198

Summary:

By a decision dated April 28, 2009, the Court of Appeal in Amsterdam granted enforcement of four arbitral awards annulled by the Russian courts under the New York Convention of 1958. The Court of Appeal’s principal reason was: “[S]ince it is very likely that the judgments by the Russian civil judge setting aside the arbitration decisions are the result of a dispensing of justice that must be qualified as partial and dependent, said judgments cannot be recognized in the Netherlands. This means that in considering the application by Yukos Capital for enforcement of the arbitration decisions, the setting aside of that decision [sic] by the Russian court must be disregarded.” In the author’s opinion, the Court of Appeal’s reasoning is at odds with the New York Convention of 1958.
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ISSN: 0255-8106
ID: JOIA2010010

 

Simon Greenberg, Flavia Mange, 'Institutional and Ad Hoc Perspectives on the Temporal Conflict of Arbitral Rules' (2010) 27 Journal of International Arbitration pp. 199–213

Summary:

The question of which version of arbitration rules applies to arbitration proceedings remains relevant to contemporary practice in the light of recent, conflicting domestic court decisions as well as recent and forthcoming revisions to major sets of arbitral rules, notably those of the International Chamber of Commerce (ICC) and United Nations Commission on International Trade Law (UNCITRAL). Should arbitral tribunals and institutions apply the arbitral rules in force at the time of the conclusion of the arbitration agreement, or that in force at the time of commencing arbitration? This article examines both the theoretical and practical issues involved in answering that question, taking account of historical and recent arbitral and domestic case law, and the different approach taken in ad hoc arbitration vis-à-vis institutional arbitration.
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ISSN: 0255-8106
ID: JOIA2010011

Journal of International Arbitration, Volume 27, Number 4, 2010

• Patricia Shaughnessy, 'Pre-arbitral Urgent Relief: The New SCC Emergency Arbitrator Rules' (2010) 27 Journal of International Arbitration pp. 337–360
• Jamie Shookman, 'Too Many Forums for Investment Disputes? ICSID Illustrations of Parallel Proceedings and Analysis' (2010) 27 Journal of International Arbitration pp. 361–378
• Wei Shen, 'Is This a Great Leap Forward? — A Comparative Review of the Investor-State Arbitration Clause in the ASEAN-China Investment Treaty: From BIT Jurisprudential and Practical Perspectives' (2010) 27 Journal of International Arbitration pp. 379–419
• Barbara Helene Steindl, 'Learned Lawyers Attest: It Is Advantageous To Be Right in (an Austrian) Court' (2010) 27 Journal of International Arbitration pp. 427–437

 

 

Summaries

 

Patricia Shaughnessy, 'Pre-arbitral Urgent Relief: The New SCC Emergency Arbitrator Rules' (2010) 27 Journal of International Arbitration pp. 337–360

Summary:

Parties who have agreed to arbitrate may sometimes need to obtain urgent relief at the outset of a dispute before the arbitral tribunal is constituted, but are disinclined to seek such relief at a court. The Arbitration Institute at the Stockholm Chamber of Commerce (SCC), has adopted new Rules which make it possible to obtain early interim measures even before arbitral proceedings have been initiated. The new Rules allow for the appointment of an emergency arbitrator within 24 hours of an application and for the emergency arbitrator to make a decision within five days of the appointment. While the new procedure offers opportunities for parties to quickly obtain early urgent relief, it also raises some issues which are discussed in this article.

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ISSN: 0255-8106
ID: JOIA2010020

Jamie Shookman, 'Too Many Forums for Investment Disputes? ICSID Illustrations of Parallel Proceedings and Analysis' (2010) 27 Journal of International Arbitration pp. 361–378

Summary:

Parallel proceedings occur when the same cause of action is adjudicated in more than one forum, either before multiple domestic courts, domestic and international courts, or before multiple international forums. Parallel proceedings are problematic at both the national and international levels as they waste money and conflicting results undermine legal certainty. The doctrines of lis pendens and res judicata are the most common solutions to managing the problem, yet both are difficult to apply in the arbitration context. Other mechanisms, such as anti-suit injunctions, so-called umbrella clauses, and fork-in-the-road clauses, are therefore intended to target the problem of parallel proceedings in international arbitration. Parallel proceedings are particularly problematic in investment arbitration because of features in investment treaties such as bilateralism, non-exclusivity, exclusion of local remedies and multiple investor claims.

Two recent ICSID cases, SGS v. Pakistan and Toto v. Lebanon, reveal some of the current problems with creating rules on parallel proceedings in investment arbitration. The cases demonstrate that the distinction between treaty claims (which trigger ICSID jurisdiction) and contract claims (which are typically adjudicated in national courts) is untenable and likely to increase future parallel proceedings. The distinction is especially difficult to maintain because determining the nature of a claim is often a question of interpretation, and arbitral tribunals are hesitant to scrutinize a claimant’s formulation of its cause of action. The two cases also show the uncertain force of choice-of-forum clauses and how they often allow arbitrators to simply bypass parties’ previous agreements. Finally, umbrella clauses have created much confusion, as previous arbitral tribunals have interpreted nearly identical clauses in four different ways. The uncertainty surrounding the future management of parallel proceedings highlights deeper, unsolved questions regarding the power private international law affords multinational enterprises vis-à-vis sovereign states in an increasingly global legal order.

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ISSN: 0255-8106
ID: JOIA2010021

Wei Shen, 'Is This a Great Leap Forward? — A Comparative Review of the Investor-State Arbitration Clause in the ASEAN-China Investment Treaty: From BIT Jurisprudential and Practical Perspectives' (2010) 27 Journal of International Arbitration pp. 379–419

Summary:

A major feature of modern bilateral investment treaties (BITs) is to allow investors to access international tribunals such as ICSID for the resolution of disputes between the investor and the host state. Both ASEAN Member States and China are active BIT players and entered into more than 240 and 120 BITs respectively. With tremendous political, economic, and legal significance, ASEAN and China concluded an investment treaty in 2009. The focus of this article is to scrutinize key aspects of the investor-state arbitration clause in this new regional treaty from BIT jurisprudential and practical perspectives, in particular, the Chinese BIT perspectives. Compared to old-generation Chinese BITs, this treaty is leaning towards a liberal stance, further facilitating investors’ access to international arbitration for investment disputes, which in turn promotes liberalism and unity in BIT activities in the region.

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ISSN: 0255-8106
ID: JOIA2010022

Pietro Ferrario, 'Challenge to Arbitrators: Where a Counsel and an Arbitrator Share the Same Office—The Italian Perspective' (2010) 27 Journal of International Arbitration pp. 421–426

Summary:

Arbitrators have the duty to be and remain impartial and independent of the parties. Impartiality requires that an arbitrator neither favors one party nor is predisposed as to the question in dispute. Independence requires that there should be no actual or past dependent relationship with the parties that may, or at least may appear to, affect the arbitrator’s freedom of judgment. However, it is not just the linking of arbitrators to any of the parties that can undermine their impartiality and independence, but also a link to one of the parties’ counsels. In particular, this article deals, from the Italian perspective, with the issue of whether a counsel and an arbitrator who share the same office may be appointed for the same arbitration proceeding without disregarding the duty of impartiality and independence of the arbitrator.

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ISSN: 0255-8106
ID: JOIA2010023

Barbara Helene Steindl, 'Learned Lawyers Attest: It Is Advantageous To Be Right in (an Austrian) Court' (2010) 27 Journal of International Arbitration pp. 427–437

Summary:

This article reviews arbitration-related Austrian Supreme Court judgments rendered between January 2008 and February 2010. Proceedings dealing with claims that marginally refer to arbitration although neither of the parties’ allegations nor the courts’ analysis implicate Austrian or foreign arbitration and enforcement laws or treaties, as well as proceedings dealing with provisions of the Austrian Arbitration Law prior to its 2006 amendment which are not reflected in the current law, were disregarded. This review covers jurisprudence on the issues of (i) estoppel and public policy; (ii) the law applicable to the (substantive) validity of the arbitration agreements and their extension to third-party beneficiaries; (iii) the availability of partial set-aside; (iv) venire contra factum proprium under Article V(1)(a) of the New York Convention; (v) the admissibility of third-party intervention in arbitration; and (vi) the authorization required for an international arbitral institution’s body to certify arbitral awards.

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ISSN: 0255-8106
ID: JOIA2010024

Journal of International Arbitration, Volume 27, Number 3, 2010

• Philipp Ritz, 'Privacy and Confidentiality Obligation on Parties in Arbitration under Swiss Law' (2010) 27 Journal of International Arbitration pp. 221–245
• Patrick Dumberry, 'Compensation for Moral Damages in Investor-State Arbitration Disputes' (2010) 27 Journal of International Arbitration pp. 247–276
• Kyriaki Noussia, 'Punitive Damages in Arbitration: Panacea or Curse?' (2010) 27 Journal of International Arbitration pp. 277–294
• Alexey Barnashov, Patricia Nacimiento, 'Recognition and Enforcement of Arbitral Awards in Russia' (2010) 27 Journal of International Arbitration pp. 295–306
• Elisabeth Leimbacher, Antonio Rigozzi, 'The Swiss Supreme Court Refits the Frigates—ICC Award Set Aside After More than Thirteen Years' (2010) 27 Journal of International Arbitration pp. 307–316
• Fabien Gélinas, 'Peeking Through the Form of Uniform Law: International Arbitration Practice and Legal Harmonization' (2010) 27 Journal of International Arbitration pp. 317–330

 

Summaries

 

Philipp Ritz, 'Privacy and Confidentiality Obligation on Parties in Arbitration under Swiss Law' (2010) 27 Journal of International Arbitration pp. 221–245

Summary:

While the privacy of arbitration proceedings is generally accepted, confidentiality is still a hotly discussed topic. After giving an overview of the legal situation on confidentiality in various jurisdictions, this article identifies the legal basis of the privacy principle under Swiss law. Thereafter, it is examined whether the parties to arbitrations in Switzerland are bound to a confidentiality obligation. This article also addresses which law applies to the questions of privacy and confidentiality in arbitrations held in Switzerland, and whether arbitral tribunals or state courts are competent to decide on the existence of a confidentiality obligation.
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ISSN: 0255-8106
ID: JOIA2010013

Patrick Dumberry, 'Compensation for Moral Damages in Investor-State Arbitration Disputes' (2010) 27 Journal of International Arbitration pp. 247–276

Summary:

This article examines the issue of monetary compensation awarded by arbitral tribunals for moral damages suffered by foreign investors in the context of investor–state arbitration. It examines the nature and the function of moral damages in international investment law as well as several controversial issues, including the proper form of reparation to remediate moral damages suffered by a state, whether proof of malicious intent is a necessary condition for a tribunal to award compensation and whether compensation should be limited to cases involving “egregious” or grave treaty violations. The article argues that particularly condemnable governmental actions toward foreign investors will have a bearing on the actual quantification of the amount of compensation to be awarded for moral damages. The goal is not only to remediate the actual damage suffered but also to send a “clear message” to the host state.

“La réparation morale contient un élément de châtiment”

Hersch Lauterpacht
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ISSN: 0255-8106
ID: JOIA2010014

Kyriaki Noussia, 'Punitive Damages in Arbitration: Panacea or Curse?' (2010) 27 Journal of International Arbitration pp. 277–294

Summary:
In recent years, the everlasting debate over the award of punitive damages in arbitration has rather intensified, not least because in certain jurisdictions, such as the United States, the awards are now larger than in the past and the attitude of the U.S. courts has grown to allow arbitrators to hear claims for which punitive damages are available. In the United Kingdom, however, the legal scenery and judicial attitude are rather different and punitive damages are not awarded save in a few cases in the law of torts. This article comments and comparatively discusses the position in the United Kingdom and in the United States in relation to punitive damages. The analysis concludes that punitive damages should be awarded to deter outrageous breaches of contract in cases where compensatory damages are inadequate and gain-based damages are unavailable. This article also contemplates the future and viability of the measure of punitive damages and the lessons to be learnt for drafters of arbitration agreements.

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ISSN: 0255-8106
ID: JOIA2010015

 

Alexey Barnashov, Patricia Nacimiento, 'Recognition and Enforcement of Arbitral Awards in Russia' (2010) 27 Journal of International Arbitration pp. 295–306

Summary:

Recognition and enforcement are crucial elements of arbitration. Without the possibility for the winning party to enforce the arbitral award in its desired country, the whole arbitration was pointless. However, the enforcement proceedings are the only way for state courts to take influence on the outcome of the arbitral trial. Thus, even though uniform recognition and enforcement of foreign arbitral awards is the main goal of the almost worldwide applicable New York Convention of 1958, the interpretation of the provisions of this Convention is still up to national courts. While for example judges in Germany strictly stick to the rules set up by the Convention, courts in Russia tend to stress the meaning of these provisions. The following article is meant to point out difficulties in enforcing arbitral awards in Russia, as there is no predictable jurisdiction yet, when it comes to the enforcement of foreign arbitral awards. The article specifically will focus on the broad application of the public policy rule by Russian state courts.
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ISSN: 0255-8106
ID: JOIA2010016

Elisabeth Leimbacher, Antonio Rigozzi, 'The Swiss Supreme Court Refits the Frigates—ICC Award Set Aside After More than Thirteen Years' (2010) 27 Journal of International Arbitration pp. 307–316

Summary:

In its decision 4A_596/2008 of October 6, 2009, the Swiss Supreme Court vacated and ordered the revision of an ICC Final Arbitral Award rendered on July 31, 1996 in the so-called “frigate-to-Taiwan” case. The Swiss Supreme Court considered that the findings in the French “ordonnance de non lieu” of October 1, 2008 — namely that Mr. Sirven committed a “fraud on the judgment” by submitting a false testimony in the ICC arbitration — were conclusive enough to order the revision of the Award.

Article 123(1) of the Swiss Supreme Court Act ( Loi sur le Tribunal Fédéral) allows for the revision of an award when criminal proceedings establish that the award was influenced, to the detriment of the petitioner, by a crime or a felony. This decision, which is the first one in which the Swiss Supreme Court sets aside an award on this legal basis, further clarifies the meaning of Article 123(1) in many respects and calls for some clarifications. Finally, this decision seems to bring this political saga to an end, as it is not anticipated that a new arbitration will be initiated.
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ISSN: 0255-8106
ID: JOIA2010017

Fabien Gélinas, 'Peeking Through the Form of Uniform Law: International Arbitration Practice and Legal Harmonization' (2010) 27 Journal of International Arbitration pp. 317–330

Summary:

When judged by the sheer amount of scholarly literature to which it has given rise, uniform law, taken broadly here to include all forms of interjurisdictional legal harmonization, is a vast subject. To a significant extent, however, this fascinating subject presents but an academic interest. That is because efforts toward legal harmonization and the incorporation of uniform law have remained in vain in many areas. Not so in respect of arbitration, the practice of which has seen spectacular growth in the context of international trade and commerce over the past twenty-five years. This article looks at the incorporation of uniform arbitration law both in its formal and informal manifestations. An overview of incorporation through procedural and substantive instruments is first provided with reference to Canadian arbitration laws. Drawing insights from a multidisciplinary look at the concept of “praxis” and the teachings of Lon Fuller, the article then looks at the status of arbitration practice vis-à-vis arbitration law and its incorporation, emphasizing the respective roles of experts and courts.
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ISSN: 0255-8106
ID: JOIA2010018

Journal of International Arbitration, Volume 27, Number 5, 2010

• Aníbal Sabater, 'When Arbitration Begins Without a Seat' (2010) 27 Journal of International Arbitration pp. 443–472
• Laurence Burger, 'Swiss Bilateral Investment Treaties: A Survey' (2010) 27 Journal of International Arbitration pp. 473–503
• Charles B. Rosenberg, 'Challenging Arbitrators in Investment Treaty Arbitrations — A Comparative Law Approach' (2010) 27 Journal of International Arbitration pp. 505–517
• Jennifer Kirby, 'T.Co Metals, LLC v. Dempsey Pipe and Supply, Inc.: Are There Really No Limits on What an Arbitrator Can Do in Correcting an Award?' (2010) 27 Journal of International Arbitration pp. 519–528
• Erica Stein, 'Thomas v. Carnival Corporation: Has the Eleventh Circuit Set International Arbitration Off Course?' (2010) 27 Journal of International Arbitration pp. 529–537
• Marie Öhrström, Hans Dahlberg, 'Proper Notification: A Crucial Element of Arbitral Proceedings' (2010) 27 Journal of International Arbitration pp. 539–543

 

Summaries

 

Aníbal Sabater, 'When Arbitration Begins Without a Seat' (2010) 27 Journal of International Arbitration pp. 443–472

Summary:
A relatively unusual occurrence a few years ago, the commencement of arbitration proceedings without agreement on the seat has recently become a significant threat to the timely and expedient resolution of disputes. This is due in part to the proliferation of investment treaties that provide for non-International Centre for Settlement of Investment Disputes (ICSID) arbitration without setting out further procedural details. This article contains a detailed roadmap for arbitration participants faced with the need to determine how and where to establish the seat after the case has started.

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ISSN: 0255-8106
ID: JOIA2010026

Laurence Burger, 'Swiss Bilateral Investment Treaties: A Survey' (2010) 27 Journal of International Arbitration pp. 473–503

Summary:
This article focuses on Bilateral Investment Treaties (BITs) entered into between Switzerland and foreign countries, and introduces the key provisions contained in BITs, with concrete examples arising out of Swiss BITs. Switzerland has entered into more than one hundred BITs, and, as such, is one of the countries with the most BITs in force.

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ISSN: 0255-8106
ID: JOIA2010027

Charles B. Rosenberg, 'Challenging Arbitrators in Investment Treaty Arbitrations — A Comparative Law Approach' (2010) 27 Journal of International Arbitration pp. 505–517

Summary:

There has been a recent uptick in challenges to arbitrators in investment treaty arbitrations. When negotiating an arbitration agreement and/or selecting a forum to commence international arbitration, challenge procedures and the applicable standards should be taken into consideration to preserve potential strategic advantages. This article undertakes a comparative law analysis of the various standards for challenging an arbitrator and then examines some of these recent decisions.

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ISSN: 0255-8106
ID: JOIA2010028

Jennifer Kirby, 'T.Co Metals, LLC v. Dempsey Pipe and Supply, Inc.: Are There Really No Limits on What an Arbitrator Can Do in Correcting an Award?' (2010) 27 Journal of International Arbitration pp. 519–528

Summary:
In T.Co Metals, LLC v. Dempsey Pipe & Supply, Inc., the U.S. Court of Appeals for the Second Circuit reversed a district court decision vacating an amended final award on the grounds that the arbitrator exceeded his power to correct his award by reconsidering and reinterpreting the record, rather than confining himself to correcting clerical errors. The Second Circuit found that, because the arbitrator had the power to interpret the institutional rules governing the proceedings, he could not exceed his power in interpreting those rules to allow him to amend his award as he did. The Second Circuit’s decision permits arbitrators to give themselves the power to reconsider decisions they make in final awards, thereby effectively allowing parties to appeal awards to the arbitral tribunal. Such a power is not found in any well-established arbitral rules, runs counter to the functus officio doctrine and undermines the finality of awards.

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ISSN: 0255-8106
ID: JOIA2010029

Erica Stein, 'Thomas v. Carnival Corporation: Has the Eleventh Circuit Set International Arbitration Off Course?' (2010) 27 Journal of International Arbitration pp. 529–537

Summary:
The United States has long been regarded as a jurisdiction favorable to international arbitration. However, a recent decision of the Eleventh Circuit Court of Appeals may call this into question. This article analyzes the court’s decision with a view towards understanding its potential impact on international arbitration in the United States, in particular with respect to the enforceability of international arbitration clauses.

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ISSN: 0255-8106
ID: JOIA2010030

Marie Öhrström, Hans Dahlberg, 'Proper Notification: A Crucial Element of Arbitral Proceedings' (2010) 27 Journal of International Arbitration pp. 539–543

Summary:
Everyone experienced in international arbitration knows how important it is to ensure that the respondent is properly notified of the arbitration. No mistakes can be afforded at this crucial stage of the proceedings. Should the notification fail, the arbitral award cannot, and should not, be enforced. If the notification is inadequate, and the respondent fails to take part in the arbitral proceedings (so-called ex parte proceedings), there will unquestionably be difficulties in enforcing the arbitral award if the respondent chooses not to comply with it.

It is very rarely that Swedish courts deny recognition and enforcement of foreign arbitral awards. However, in a recent case from the Swedish Supreme Court, enforcement of an award was denied in Sweden due to lack of proper notification. The case clearly illustrates how critical and important proper notification is in cross-border disputes. Moreover, the case raises questions about the arbitral institutions’ responsibility and practices in this regard.

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ISSN: 0255-8106
ID: JOIA2010031