Journal of International Arbitration, Volume 26, Number 4, 2009

 
SUMMARIES

Helena H.C. Chen, 'The Practical Impact of Amendment to Article 85-1, Section 2 of the Government Procurement Act A Report from Taiwan' (2009) 26 Journal of International Arbitration pp. 491–510

Summary:
The amendment to Article 85-1, section 2 of the Taiwanese Government Procurement Act, promulgated on July 4, 2007, is generally regarded as the most important change made in the field of Taiwanese construction law in recent years. The new law provides an avenue for contractors to refer disputes arising from government procurement construction contracts to arbitration without a written arbitral agreement, when certain criteria are met. This is quite noteworthy because it deviates from the general requirement for a written arbitration agreement. Furthermore, various questions relating to the application of the amendment also demonstrate that the concise language of such amendment is not sufficient to cope adequately with the needs in practice. This article aims to highlight and analyze major controversial issues relating to the amendment with available administrative interpretation letters and jurisprudence in the hope of providing a better picture of the application of the new law.

Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009027


Dr. Ali Z. Marossi, 'The Necessity for Discovery of Evidence in the Fact-Finding Process of International Tribunals' (2009) 26 Journal of International Arbitration pp. 511–531

Summary:
One of the key aspects of national and international arbitrations is the manner in which evidence is gathered and presented to the arbitral tribunal or panel. The collaboration of parties in these matters can shape the outcome of almost every dispute. However, the approach of international courts and tribunals such as the Iran-United States Claims Tribunal (IUSCT) toward the concept of presenting and producing evidence is subject to many issues, for example, the rules of evidence, applicable law, the arbitrators’ legal background, the inherent power of courts and tribunals and the principle of fair trial. Truly, no aspect of international arbitration has caused as much friction as the issue of discovery. The scope of discovery available to parties varies, and is often a delicate issue in international disputes as parties from different legal backgrounds frequently have very different expectations as to how the evidence-gathering process should be conducted.
In brief, this article does not promote the notion that liberal discovery is a fundamental right, rather it focuses on developing a model that treats cost effectiveness as a fundamental issue which should be examined when drafting procedural rules.

Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009028


Moritz Renner, 'Towards a Hierarchy of Norms in Transnational Law?' (2009) 26 Journal of International Arbitration pp. 533–555

Summary:
Transnational law as applied in international arbitration is based on private contracts and the principle of party autonomy. It is therefore often described as being increasingly detached from domestic and international law. At the same time, it is well accepted that international arbitral tribunals must apply certain mandatory norms protecting public policy irrespective of the law otherwise applicable. Based on a survey of arbitral practice, this article argues that, taken together, both developments contribute to the emergence of transnational hierarchies of norms, a “constitutionalization” of transnational law.

Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009029


Jean Kalicki, Arnoldo Wald, 'The Settlement of Disputes between the Public Administration and Private Companies by Arbitration under Brazilian Law' (2009) 26 Journal of International Arbitration pp. 557–578

Summary:
The ability of state entities to submit to international arbitration remained the subject of hot debate for a long time under Brazilian law. Brazil’s resistance to arbitrability of disputes involving public administration was not very different from the resistance faced by other countries around the world. Brazil began to overcome traditional hostilities related to arbitration involving state entities in 2005, as a result of legislative reforms, which expressly authorized the use of arbitration in public-private partnerships (PPPs) and in concession contracts, as well as favorable decisions rendered by the Superior Court of Justice. In light of these developments, it can now be said that Brazilian law fully and finally recognizes the capacity of state entities to submit to arbitration. This recognition provides greater security to investors that contract with Brazil’s state entities, and ultimately contributes to the country’s economic growth.

Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009030


Laurence Kiffer, 'Comments on the Paris Court of Appeal Decision in SNF v. International Chamber of Commerce' (2009) 26 Journal of International Arbitration pp. 579–589

Summary:
With the purpose of protecting the users of International Chamber of Commerce (ICC) arbitration services, the Paris Court of Appeal found that the exclusion of liability clause provided under Article 34 of the ICC Rules is null and void under French law as it authorizes the arbitral institution not to perform its main contractual obligation to organize and administer the arbitration proceedings. Thus, the ICC may be found liable under French law for breaches of its obligations under its contractual relationship with the parties to the arbitration proceedings. However the reinforcement of the control exercised over the proper performance of the arbitral institution’s obligation is balanced by the fact that for the institution’s liability to be effective, there is an evidentiary issue which may be difficult for the parties to establish.

Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009031


Pierre Duprey, 'Comments on the Paris Court of Appeal Decision in Czech Republic v. Pren Nreka' (2009) 26 Journal of International Arbitration pp. 591–604

Summary:
In its September 25, 2008 decision in Czech Republic v. Pren Nreka, the Paris Court of Appeal held notably that in ad hoc arbitration under a bilateral investment treaty (BIT), the notion of “investment” must be interpreted in accordance with the terms of the BIT and is not subject to objective criteria or tests external to the BIT, while giving an extremely broad reading to language in a BIT defining an “investment” as “any kind of asset invested in connection with economic activities.” As discussed in the commentary below, this should revive the debate as to whether, in investment arbitration, a common and unified definition of the notion of “investment” should be applicable worldwide and before any arbitral tribunal.

Copyright © 2009 Kluwer Law International
All rights reserved
ISSN: 0255-8106
ID: JOIA2009032