Journal of International Arbitration, Volume 28, Number 1, 2011

• Jade G. Ewers, Stephan Wilske, 'Why South Africa Should Update Its International Arbitration Legislation — An Appeal from the International Arbitration Community for Legal Reform in South Africa' (2011) 28 Journal of International Arbitration pp. 1–13
• Peng Xianwei, 'Validity of the “Beijing Arbitration” Clause — A Discussion of Two Landmark Civil Rulings of the Chinese Supreme People’s Court' (2011) 28 Journal of International Arbitration pp. 15–20
• Chetan Phull, 'U.S. Anti-suit Injunctions in Support of International Arbitration: Five Questions American Courts Ask' (2011) 28 Journal of International Arbitration pp. 21–50
• Daria Kozlowska, 'The Revised UNCITRAL Arbitration Rules Seen through the Prism of Electronic Disclosure' (2011) 28 Journal of International Arbitration pp. 51–65
• Mutasim Ahmad Alqudah, 'Enforceability of Arbitration Clauses in Online Business-to-Consumer Contracts' (2011) 28 Journal of International Arbitration pp. 67–79
• S.I. Strong, 'Non-signatories’ Right to Appeal the Denial of a Stay of Litigation: Arthur Andersen L.L.P. v. Carlisle' (2011) 28 Journal of International Arbitration pp. 81–85

 

Summaries

 

Jade G. Ewers, Stephan Wilske, 'Why South Africa Should Update Its International Arbitration Legislation — An Appeal from the International Arbitration Community for Legal Reform in South Africa' (2011) 28 Journal of International Arbitration pp. 1–13

Summary:
The 2010 FIFA World Cup has stirred renewed interest in South Africa as a potential international trade and investment partner and in the country’s ability and readiness to host international arbitrations. In light of the global movement toward the modernization of arbitration laws, South Africa seems to be lagging behind other developing countries which are eagerly reaping the benefits that come with being a place of arbitration. Despite the fact that South Africa is Africa’s economic powerhouse, it is neglected as a place of arbitration. This article examines why this is so, noting in particular that South Africa’s main arbitration laws are perceived as “outdated” and “inadequate,” which discourage parties from choosing South Africa as a place of arbitration. In particular, the article shows that the South African Arbitration Act (SAAA) of 1965 gives excessive discretionary powers to local courts, allowing them to obstruct the arbitration process, and that subsequent legislation fails to give adequate effect to the New York Convention. In acknowledging recent developments that reaffirm arbitration as a means of dispute resolution in South Africa, the article concludes with a call for legal reform in this field of law beyond the efforts already made by the South African Law Commission.

Copyright © 2011 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2011001

Peng Xianwei, 'Validity of the “Beijing Arbitration” Clause — A Discussion of Two Landmark Civil Rulings of the Chinese Supreme People’s Court' (2011) 28 Journal of International Arbitration pp. 15–20

Summary:
Under Chinese arbitration law, there exists a special requirement that for an arbitration clause to be valid, the arbitration institute must be designated. This article analyses the reasons for this requirement and in particular, considers two civil rulings delivered by the Chinese Supreme People’s Court in 2009 invalidating clauses which simply provide for “Beijing Arbitration.”

Copyright © 2011 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2011002

Chetan Phull, 'U.S. Anti-suit Injunctions in Support of International Arbitration: Five Questions American Courts Ask' (2011) 28 Journal of International Arbitration pp. 21–50

Summary:
International arbitration is an increasingly popular dispute resolution mechanism, however, the threat of foreign court intervention unremittingly remains. It is therefore important for a party seeking to enforce an arbitration agreement to know which jurisdictions are most amenable to protecting arbitration agreements, and what courts in these jurisdictions consider material in deciding whether to issue an anti-suit injunction (ASI) against the party seeking to sidestep arbitration through a foreign court order. In the United States, courts in certain jurisdictions in particular have shown a willingness to protect arbitration agreements through ASIs, in the presence of certain factors. The author has uncovered five fact-specific questions from the case law produced by these courts that are material to the courts’ issuance of ASIs. In the abstract, the questions consider: actual refusal to arbitrate and parallel foreign litigation; recognition and enforcement of an arbitration award enjoined by a “competent authority” under the New York Convention; the res judicata effect of U.S. judgments; the strong public policy in favor of arbitration; and bad faith by the party seeking to hinder arbitration. The additional element of whether an ASI to enforce an arbitration agreement is requested from an offensive versus defensive position is also considered in the discussion of the five questions.

Copyright © 2011 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2011003

Daria Kozlowska, 'The Revised UNCITRAL Arbitration Rules Seen through the Prism of Electronic Disclosure' (2011) 28 Journal of International Arbitration pp. 51–65

Summary:
The newly revised United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules came into force on August 15, 2010. The main aim of the revision was to rejuvenate the Rules so that they catch up with the dynamic changes in arbitration practice. This article analyses the revised Rules from the perspective of electronic disclosure, focusing on changes aiming at, inter alia, fighting delays and growing costs of the arbitration process, supporting early cooperation of the parties or limiting the possibility of U.S.-style discovery.

Copyright © 2011 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2011004

Mutasim Ahmad Alqudah, 'Enforceability of Arbitration Clauses in Online Business-to-Consumer Contracts' (2011) 28 Journal of International Arbitration pp. 67–79

Summary:
As online cross-border business-to-consumer (“B2C”) arbitration is a type of international arbitration, and as the New York Convention 1958 (NYC) has more than 144 signatories, the enforcement of an online crossborder B2C arbitration clause is most likely to be governed by the rules of the NYC. However, two issues in the NYC rules can seriously impact the certainty of the enforceability of the online B2C arbitration clause. The first is the issue of satisfying the formal validity requirement under Article II(1), (2) of the NYC. The second is that of violating the public policy exception to the enforcement of an arbitration clause under the NYC. This article explains these two issues and it will conclude with the suggestion that a new regulatory model for online B2C arbitration is required and that such a model would eliminate uncertainties resulting from the current rules of the NYC.

Copyright © 2011 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2011005

S.I. Strong, 'Non-signatories’ Right to Appeal the Denial of a Stay of Litigation: Arthur Andersen L.L.P. v. Carlisle' (2011) 28 Journal of International Arbitration pp. 81–85

Summary:
In Arthur Andersen L.L.P. v. Carlisle, the U.S. Supreme Court held that any litigant—even a party who has not signed an underlying arbitration agreement—who seeks a stay of litigation pending arbitration under the U.S. Federal Arbitration Act (FAA) is entitled to an immediate appeal from a denial of that motion. This highly disturbing decision fails to engage with important principles of arbitration law and creates a clear, but ultimately problematic, rule for future litigants.

Copyright © 2011 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2011006