Arbitration International, Vol. 26, Number 4, 2010

 

• Veijo Heiskanen, 'And/Or: The Problem of Qualification in International Arbitration'
• Marie Louise Seelig, Anna Giulia Tevini, 'Revision Proceedings under the ICSID Convention: Suggestions for a Possible Interpretation of the Prerequisites of Article 51 of the ICSID Convention'
• S.I. Strong, 'From Class to Collective: The De-Americanization of Class Arbitration'
• Wei Shen, 'Leaning Towards a More Liberal Stance? – An Evaluation of Substantive Protection Provisions under the New ASEAN–China Investment Agreement in Light of Chinese BIT Jurisprudence'
• Jeff Waincymer, 'Reconciling Conflicting Rights in International Arbitration: The Right to Choice of Counsel and the Right to an Independent and Impartial Tribunal'
• Sam Luttrell, 'Australia Adopts the ‘Real Danger’ Test for Arbitrator Bias'
• Jean Ho, 'The Meaning of ‘Investment’ in ICSID Arbitrations'

 

SUMMARIES

 

Veijo Heiskanen, 'And/Or: The Problem of Qualification in International Arbitration' (2010) 26 Arbitration International pp. 441–466

Summary:

The problem of qualification is one of the classic problems of conflict of laws and indeed has been characterised by leading scholars as the ‘fundamental’ problem. In short, it is about how a particular legal relation should be conceptualized or, more specifically, whether it should be qualified as a relationship of law and fact or rather as a conflict of laws. While the problem has attracted only limited attention among international arbitration scholars and practitioners, it provides an interesting perspective to conflict of laws in international arbitration.

In classic conflict of laws, the problem of qualification was associated with the question of the relationship between legal categories (contract, tort, procedure, etc.) and a connecting factor (place of performance, place of tort, forum, etc.) In international arbitration, the relationship between the arbitration proceedings and the seat of arbitration, and other relevant connecting factors, raises similar issues of qualification. Measured by the relevant connecting factors such as the seat of arbitration, the nationality or domicile of the parties, the place of performance of the contract, and the subject matter of the dispute, an international arbitration may be more or less ‘international’ – or perhaps more accurately, ‘transnational.’ The less transnational the arbitration is in terms of the relevant connecting factors, the more appropriate it arguably is to resolve any conflict of laws issues that may arise on the basis of the standards of the seat. The more transnational the arbitration is in terms of such connecting factors, the more appropriate it arguably is to resolve any conflict issues by reference to transnational standards. In other words, the transnationality of international arbitration is a sliding scale, or a difference in degree, and as such a matter of policy.

While qualification may or may not be the ‘fundamental’ problem of international arbitration, depending on one’s intellectual viewpoint, it does provide an instructive framework for developing an understanding of conflict of laws issues in international arbitration. Although true conflicts of laws remain rare, they may arise, and when they do arise, they tend to raise sensitive issues of public policy, precisely because an arbitral tribunal is not necessarily bound by the public policies of the seat.

Copyright © 2010 Kluwer Law International
All rights reserved

ISSN: 0957-0411
ID: ARBI2010023


Marie Louise Seelig, Anna Giulia Tevini, 'Revision Proceedings under the ICSID Convention: Suggestions for a Possible Interpretation of the Prerequisites of Article 51 of the ICSID Convention' (2010) 26 Arbitration International pp. 467–492

Summary:


Recently, not only the number of ICSID proceedings in general has increased but also the number of annulment and revision proceedings challenging the finality of an ICSID award. This development can be seen as reflecting the increasing dissatisfaction among certain of the players in the field with the outcome of an ICSID award specifically and the ICSID system in general. It thus appears not unlikely that the number of revision proceedings as one of the currently available remedies to challenge the finality of an ICSID award will further increase.

While three applications for revision have been filed so far, only one decision in an ICSID revision proceeding has been rendered by an arbitral tribunal. In view of the scarcity of jurisprudence and literature in the field of ICSID revision proceedings, the authors discuss legal standards governing ICSID revision proceedings in general and the burden of proof and weighing of evidence in ICSID revision proceedings specifically. In applying these standards to each of the prerequisites of Article 51 of the ICSID Convention, which must be met in order for an application for revision to be successful, the authors provide guidance for determining the prospects of success of an Article 51 revision application.

The authors conclude that, in light of the presumption in the ICSID Convention in favour of the finality of an award, revision should be an exceptional remedy. The prerequisites of Article 51 of the ICSID Convention should be interpreted restrictively. A balance needs to be struck between the principle of res judicata and legal stability, on the one hand, and the interests of justice and procedural fairness, on the other hand. In view of the fact that the ICSID Convention provides generally for the finality of an award and does not foresee an appeal mechanism, such a mechanism should not be introduced through the ‘back door’ in the guise of an application for revision.

Copyright © 2010 Kluwer Law International
All rights reserved

ISSN: 0957-0411
ID: ARBI2010024

 

S.I. Strong, 'From Class to Collective: The De-Americanization of Class Arbitration' (2010) 26 Arbitration International pp. 493–548

Summary:


Opponents to international class arbitration (also known as ‘class action arbitration’ or ‘classwide arbitration’) frequently characterize the procedure as a ‘ “uniquely American” device’ and take the view that the procedure never could or never should expand beyond the United States. However, a growing number of commentators believe that large-scale group arbitration can or will spread beyond US borders, although that does not necessarily mean that the procedures adopted will or should be the same as those used in US-style class arbitrations. This article considers what these new forms of group arbitration – described herein as ‘collective arbitration’ to mirror terminology used to describe collective redress in national courts – will look like in terms of procedure. The discussion also includes analysis of certain potential problem areas, using analogies to the American Arbitration Association (AAA) Supplementary Rules for Class Arbitration as a guide, and addresses the likely enforceability of awards arising out of such actions under the New York Convention.

Copyright © 2010 Kluwer Law International
All rights reserved

ISSN: 0957-0411
ID: ARBI2010025


Wei Shen, 'Leaning Towards a More Liberal Stance? – An Evaluation of Substantive Protection Provisions under the New ASEAN–China Investment Agreement in Light of Chinese BIT Jurisprudence' (2010) 26 Arbitration International pp. 549–595

Summary:


In stark contrast to the explosion of bilateral investment treaties, multilateral movement in the field of international investment protection has been relatively slower and less significant. In the Asian region, the most recent multilateral achievement is the investment treaty signed by ASEAN and China. This article scrutinises major substantive standards such as national treatment, most-favoured-nation treatment, fair and equitable treatment, full protection and security, expropriation, and capital transfer by reference to Chinese investment treaty jurisprudence. A thorough comparative review indicates that, regardless of its economic and political significance, the treaty represents the more liberal stance both ASEAN and China have recently taken in offering substantive protection standards to foreign investors, which will facilitate investment, improve transparency of investment rules and regulations, strengthen cooperation in investment, and ultimately liberalise the investment regime in the whole ASEAN–China area.

Copyright © 2010 Kluwer Law International
All rights reserved

ISSN: 0957-0411
ID: ARBI2010026

 

Jeff Waincymer, 'Reconciling Conflicting Rights in International Arbitration: The Right to Choice of Counsel and the Right to an Independent and Impartial Tribunal' (2010) 26 Arbitration International pp. 597–623

Summary:


Each party in international commercial arbitration holds a number of fundamental rights, in particular the right to equal treatment and the right to an adequate opportunity to present its case, including the right to counsel of choice. A further fundamental right is that arbitral tribunals be independent and/or impartial throughout the arbitral process. An additional potential right is the right under most arbitral rules for each party to select one arbitrator where a three-person panel is to be utilised. While these are clearly accepted rights, what happens if and when they clash? This article seeks to analyse the nature of these rights and how they might appropriately be reconciled. It does so through a discussion of two recent ICSID cases that came to conflicting conclusions in situations where a tribunal is first constituted with sufficient independence from existing counsel, but new counsel are then brought in who have a closer relationship with one or more tribunal members and counsel’s presence is challenged. The article argues that it would be an unacceptable defect in the procedural justice of international arbitration if this could only be dealt with by a challenge to an already functioning tribunal. If the relationship is serious enough, new counsel should be prevented from being involved. This approach can be justified through implied limitations on the express rights themselves, namely, a party cannot choose either counsel or a tribunal member that would create an inappropriate relationship undermining the tribunal’s qualifications under whatever test of impartiality and independence the relevant lex arbitri and arbitral rules prescribe.

Copyright © 2010 Kluwer Law International
All rights reserved

ISSN: 0957-0411
ID: ARBI2010027

 

Sam Luttrell, 'Australia Adopts the ‘Real Danger’ Test for Arbitrator Bias' (2010) 26 Arbitration International pp. 625–632

Summary:

This note concerns recent changes to Australian international arbitration law that replace the existing common law ‘reasonable apprehension’ test for arbitrator bias with the ‘real danger’ test laid down by the House of Lords in R v Gough [1993] AC 646. Australia is the first country to adopt this test as a provision of its written arbitration law. This note provides some examples of the application of the ‘real danger’ test, and discusses how Australian courts may interpret and apply this ‘Model Law Plus’ provision in the coming years.

Copyright © 2010 Kluwer Law International
All rights reserved

ISSN: 0957-0411
ID: ARBI2010028

 

Jean Ho, 'The Meaning of ‘Investment’ in ICSID Arbitrations' (2010) 26 Arbitration International pp. 633–647

Summary:


The term ‘investment’ in Article 25(1) of the ICSID Convention has eluded definition ever since the entry into force of the ICSID Convention in 1966. The Salvors Award on Jurisdiction of 2007 and the Salvors Annulment Decision of 2009 encapsulate two divergent interpretive approaches which, when applied to the same set of facts, can lead to opposite findings on the presence of an ‘investment’. The tribunal in the Salvors Award favoured an objective meaning of ‘investment’ that was ascertainable independently of how ‘investment’ was defined in the United Kingdom–Malaysia BIT and found that there was no ‘investment’ within the meaning of the ICSID Convention. In contrast, the majority of the ad hoc Committee in the Salvors Annulment Decision relied on the BIT as the sole interpretive source of the meaning of ‘investment’ and found that an ‘investment’ did exist. Subsequent tribunals tasked with determining the existence of an ‘investment’ when disputing parties invoke the jurisdiction of ICSID have continued to apply one of the two prevailing approaches. This author is persuaded that the interpretive approach adopted by the majority of the ad hoc Committee in the Salvors Annulment Decision is to be preferred.

Copyright © 2010 Kluwer Law International
All rights reserved

ISSN: 0957-0411
ID: ARBI2010029

Arbitration International, Vol. 26, Number 1, 2010

• Hege Elisabeth Kjos, 'Agora – Asymmetry and Equality of Arms'
• Thomas W. Wälde, 'Procedural Challenges in Investment Arbitration under the Shadow of the Dual Role of the State—Asymmetries and Tribunals’ Duty to Ensure, Pro-actively, the Equality of Arms'
• Abba Kolo, 'Witness Intimidation, Tampering and Other Related Abuses of Process in Investment Arbitration: Possible Remedies Available to the Arbitral Tribunal'
• Christopher Munn, Derek Roebuck, '‘Something So Un-English’: Mediation and Arbitration in Hong Kong, 1841–1865'
• Peter Morton, 'Can a World Exist Where Expedited Arbitration Becomes the Default Procedure?'
• Emilia Onyema, 'Enforcement of Arbitral Awards in Sub-Sahara Africa'
• Ned Beale, Lisa Bench Nieuwveld, Matthijs Nieuwveld, 'Summary Arbitration Proceedings: A Comparison Between the English and Dutch Regimes'
• James H. Carter, Daniel Girsberger, Campbell McLachlan, Joseph E. Neuhaus, Thomas W. Walsh, 'Agora: Gary Born on International Commercial Arbitration'
• Ruth Teitelbaum, 'The Future of Investment Arbitration by Catherine A. Rogers and Roger P. Alford. (Published by ITA-ASIL and Oxford University Press, 2009)'

Read more...

Arbitration International, Vol. 26, Number 3, 2010

• Mark Kantor, 'A Code of Conduct for Party-Appointed Experts in International Arbitration – Can One be Found?'
• Martin King, Ian Meredith, 'Partial Enforcement of International Arbitration Awards'
• Chido Dunn, Oliver R. Jones, 'Consent, Forced Renegotiation and Expropriation in International Law'
• Masood Ahmed, 'Arbitration Clauses: Fairness, Justice and Commercial Certainty'
• Ceyda Süral, 'Nearly a Decade On – The Perception of International Arbitration Law by Turkish Courts'
• Laurence Shore, Review 'Arbitration Clauses for International Contracts by Paul D. Friedland. (Published by Juris Publishing, Inc. 2007)'

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Arbitration International, Vol. 26, Number 2, 2010

• Luca Radicati Di Brozolo, Mark Friedman, Filip De Ly, 'Introduction to the International Law Association International Commercial Arbitration Committee’s Report and Recommendations on ‘Ascertaining the Contents of the Applicable Law in International Commercial Arbitration’
• International Law Association International Commercial Arbitration Committee’s Report and Recommendations on ‘Ascertaining the Contents of the Applicable Law in International Commercial Arbitration’
• Nicolas Ulmer, 'The Cost Conundrum'
• Alok N. Jain, 'Yet Another Misad-Venture by Indian Courts in the Satyam Judgment?'
• Edouard Fortunet, 'Arbitrability of Intellectual Property Disputes in France'
• Lanfang Fei, 'Public Policy as a Bar to Enforcement of International Arbitral Awards: A Review of the Chinese Approach'
• Ruth Teitelbaum, 'Case Report on Saipem v. Bangladesh'

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