Journal of International Arbitration, Volume 27, Number 6, 2010

• Didem Kayali, 'Enforceability of Multi-Tiered Dispute Resolution Clauses' (2010) 27 Journal of International Arbitration pp. 551–577
• Paul Michael Blyschak, 'Arbitrating Overseas Oil and Gas Disputes: Breaches of Contract Versus Breaches of Treaty' (2010) 27 Journal of International Arbitration pp. 579–629
• Alexandra Johnson, Isabelle Wildhaber, 'Arbitrating Labor Disputes in Switzerland' (2010) 27 Journal of International Arbitration pp. 631–655
• Sarosh Zaiwalla, 'LCIA India: Will It Change the International Arbitration Scene in India?' (2010) 27 Journal of International Arbitration pp. 657–665
• Detlev Kühner, 'The Revised IBA Rules on the Taking of Evidence in International Arbitration' (2010) 27 Journal of International Arbitration pp. 667–677
• David Wilson, 'The Resurgence of Scotland as a Force in International Arbitration: The Arbitration (Scotland) Act 2010' (2010) 27 Journal of International Arbitration pp. 679–687

 

Summaries

 

Didem Kayali, 'Enforceability of Multi-Tiered Dispute Resolution Clauses' (2010) 27 Journal of International Arbitration pp. 551–577

Summary:
Multi-tiered dispute resolution clauses comprise different steps which begin with various alternative dispute resolution (ADR) techniques. In these clauses, arbitration is designed as the last step if the dispute cannot be resolved by preliminary ADR efforts. However, problems occur regarding the enforceability of these clauses when one of the parties does not comply with the procedure designed in the contract. This article seeks to define the nature of multi-tiered dispute resolution clauses in the light of the different views of scholars, courts, and arbitral tribunals, to ascertain the drafting problems that hinder their enforceability, and to clarify the essentials for an effective multi-tiered dispute resolution clause. The main finding of the article is that once drafted in an operative way, a multi-tiered dispute resolution clause should be respected and enforced as the choice of the parties.

Copyright © 2010 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2010033

Paul Michael Blyschak, 'Arbitrating Overseas Oil and Gas Disputes: Breaches of Contract Versus Breaches of Treaty' (2010) 27 Journal of International Arbitration pp. 579–629

Summary:
Although a contractual agreement typically forms the foundation of an overseas oil and gas project, it is important for energy firms to understand that international investment law has developed specifically to provide foreign investors with rights which extend beyond such instruments. An oil and gas contract may define the basic nature of an energy firm’s participation in an overseas project, but where an international investment treaty is available the firm will enjoy rights additional to the individual terms of the contract. Therefore, where an overseas oil and gas dispute arises, it is crucial for the energy firms involved to clearly understand the full scope of their rights and protections. This includes full appreciation of the different circumstances in which a breach of contract claim can be brought before an international investment tribunal, as well as the different circumstances in which such a claim may be problematic. This also includes full appreciation of the different circumstances in which it may be advisable to abandon breach of contract claims altogether in favor of entirely different causes of action available under an investment treaty. Breach of contract claims can be brought under investment treaties which include either a broad dispute resolution clause (DRC) or an umbrella clause. However, two significant impediments to the availability of these provisions mar their potential utility to oil and gas firms. First, the existence of a forum selection clause in the operative contract can function to prohibit the investor from arbitrating a claim that the contract has been breached if the forum before which the claim is pursued is different from that stipulated. Second, an investment tribunal may refuse jurisdiction to hear a breach of contract claim where a state-owned company or state agency is the counterparty to the contract rather than the state itself.

Copyright © 2010 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2010034

Alexandra Johnson, Isabelle Wildhaber, 'Arbitrating Labor Disputes in Switzerland' (2010) 27 Journal of International Arbitration pp. 631–655

Summary:
Long regarded as against nature, the relationship between arbitration and labor law has generated a growing interest in recent years, with the realization that arbitration can be an effective tool for the resolution of individual employment disputes, especially for top-level managers or international athletes. The Swiss system broadly recognizes the arbitrability of individual employment disputes on an international level. On a domestic level, arbitrability of individual employment disputes is more limited following a decision of the Swiss Federal Tribunal of June 28, 2010. However, under the new Swiss Civil Code of Procedure, which will enter into force on January 1, 2011, parties to domestic arbitration agreements will be able to opt into the international regime and therefore possibly circumvent such limitation. Furthermore, the article discusses particularities related to arbitration agreements in collective employment contracts, as well as arbitration of collective labor disputes.

Copyright © 2010 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2010035

Sarosh Zaiwalla, 'LCIA India: Will It Change the International Arbitration Scene in India?' (2010) 27 Journal of International Arbitration pp. 657–665

Summary:
Recently, the London Court of International Arbitration (LCIA) established LCIA India. Although LCIA India bears the name of its parent body in London, one hopes it is intended to be an Indian institution, of course with the support of LCIA London. This is a welcome development for the international business community in general and India in particular, as it is hoped that LCIA India will maintain a very high international standard in its awards. This in turn will encourage the Indian courts to have confidence in the awards published under the aegis of this institution. In order to consider whether the LCIA Rules will able to achieve this noble objective it is necessary to consider the background of international arbitration in India and the role of the Indian judiciary in relation to it.

Copyright © 2010 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2010036

Detlev Kühner, 'The Revised IBA Rules on the Taking of Evidence in International Arbitration' (2010) 27 Journal of International Arbitration pp. 667–677

Summary:
As of May 29, 2010, arbitration users can benefit from a revised version of the IBA Rules on the Taking of Evidence in international arbitration. Although the numbering and headings of the 1999 Rules could be, for the most part, maintained, the revised Rules contain a series of useful modifications to address new issues and trends that have arisen during the last decade. This article analyses the changes brought to the 2010 Rules in detail and shows the extent to which their main goal to keep up with new trends and challenges has been attained.

Copyright © 2010 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2010037

David Wilson, 'The Resurgence of Scotland as a Force in International Arbitration: The Arbitration (Scotland) Act 2010' (2010) 27 Journal of International Arbitration pp. 679–687

Summary:
The Arbitration (Scotland) Act 2010 has introduced significant and welcome changes to the law and practice of arbitration in Scotland, sweeping away centuries of inconsistency and uncertainty. Following the much-needed and long-awaited codification of the old common law, will Scotland’s popularity improve as a cost-effective and efficient seat for arbitration on the international stage? This article details the history of arbitration in Scotland and explains how the provisions of the 2010 Act will rectify the unsatisfactory system of arbitration that it is overruling. Although it remains to be seen to what extent the 2010 Act will affect Scotland’s reputation as a credible seat for international arbitrations, both Scots lawyers and non-lawyers alike are optimistic that the impact will be positive.

Copyright © 2010 Kluwer Law International
All rights reserved

ISSN: 0255-8106
ID: JOIA2010038