Arbitration International, Vol. 27, Number 1, 2011

• Luca G. Radicati Di Brozolo, 'Arbitration and Competition Law: The Position of the Courts and of Arbitrators' (2011) 27 Arbitration International pp. 1–25
• Hussein Haeri, 'A Tale of Two Standards: ‘Fair and Equitable Treatment’ and the Minimum Standard in International Law — The Gillis Wetter Prize' (2011) 27 Arbitration International pp. 27–45
• Andrea Carska-Sheppard, 'The International Arbitration Paradigm and Application of Dispute Resolution Measures — A Czech Republic Perspective' (2011) 27 Arbitration International pp. 47–56
• Renata Brazil-David, 'An Examination of the Law and Practice of International Commercial Arbitration in Brazil' (2011) 27 Arbitration International pp. 57–73
• John E. Beerbower, 'International Arbitration: Can We Realise the Potential?' (2011) 27 Arbitration International pp. 75–90
• Markus Burgstaller, Charles B. Rosenberg, 'Challenging International Arbitral Awards: To ICSID or not to ICSID?' (2011) 27 Arbitration International pp. 91–107
• Ruth Teitelbaum, 'Arbitrability: International and Comparative Perspectives, edited by LOUKAS A. MISTELIS and STAVROS L. BREKOULAKIS. (Published by Kluwer Law International, 2009)' (2011) 27 Arbitration International pp. 109–110

 

 

Summaries

 

Luca G. Radicati Di Brozolo, 'Arbitration and Competition Law: The Position of the Courts and of Arbitrators' (2011) 27 Arbitration International pp. 1–25

Summary:
The article assesses the current state of the debate on the relations between competition law and arbitration. It addresses the two central issues of the nature of the review by courts of awards involving competition law and of the duties and powers of arbitrators with regard to the application of competition law. The author analyzes the standard of review of awards involving competition law at the setting aside and enforcement stage and shows that a standard which is compatible with the general principle of minimal review of awards on the merits does not hinder effective anti-trust enforcement. The article also illustrates the principles that must guide arbitrators in their decisions regarding the application of competition law, including the criteria to identify the applicable competition law in complex international cases.

Copyright © 2011 Kluwer Law International
All rights reserved

ISSN: 0957-0411
ID: ARBI2011001

Hussein Haeri, 'A Tale of Two Standards: ‘Fair and Equitable Treatment’ and the Minimum Standard in International Law — The Gillis Wetter Prize' (2011) 27 Arbitration International pp. 27–45

Summary:
This article examines the relationship, past, present and future, between the fair and equitable treatment standard and the international minimum standard of treatment for aliens in light of modern jurisprudence and state practice.

The provenance of the fair and equitable treatment standard lies in the international minimum standard in customary international law. However, the fair and equitable treatment standard has emerged in investment arbitration jurisprudence as a distinct and relatively broad standard where it is not expressly linked with the international minimum standard. By contrast, the development of the international minimum standard, in accordance with customary international law, has been more cautious: the threshold for violating the standard remains high. This article posits that the difference between the two standards reflects their different purposes and the different methodologies for interpreting treaties and ascertaining customary international law. The development of the fair and equitable treatment standard as a broader standard than the international minimum standard has led to state practice linking the two standards to reduce liability. While it has been suggested that the fair and equitable treatment standard could itself become a part of customary international law, state practice and jurisprudence suggest that an autonomous fair and equitable treatment standard is not part of customary international law.

Copyright © 2011 Kluwer Law International
All rights reserved

ISSN: 0957-0411
ID: ARBI2011002

Andrea Carska-Sheppard, 'The International Arbitration Paradigm and Application of Dispute Resolution Measures — A Czech Republic Perspective' (2011) 27 Arbitration International pp. 47–56

Summary:
The article looks behind a hotly debated issue of effectiveness in international arbitration. The need for confidence in the international arbitral process has led the stakeholders of the arbitral process not only to debate this issue in various fora but to dedicate their time to development of comprehensive studies. What recommendations do these studies have to offer? This is what this article is looking at, not merely from a general perspective but by assessing the status of arbitrations and what these studies may offer to a country which was heavily hit by bilateral investment claims – the Czech Republic.

Copyright © 2011 Kluwer Law International
All rights reserved

ISSN: 0957-0411
ID: ARBI2011003

Renata Brazil-David, 'An Examination of the Law and Practice of International Commercial Arbitration in Brazil' (2011) 27 Arbitration International pp. 57–73

Summary:
This article focuses on the legal framework of international commercial arbitration in Brazil. It provides an examination of the changes introduced by the Brazilian Arbitration Law, the international conventions ratified by Brazil and the case law that is being developed in the country in relation to arbitration. Brazil used to be known for its remarkable hostility towards arbitration; however, this is no longer the case. The legal framework of international commercial arbitration in Brazil has gradually changed since the 1990s, when Brazil approved a modern arbitration law. Since then, several steps have been taken to enable Brazil to become a real player in the international arbitration ‘field’.

Copyright © 2011 Kluwer Law International
All rights reserved

ISSN: 0957-0411
ID: ARBI2011004

John E. Beerbower, 'International Arbitration: Can We Realise the Potential?' (2011) 27 Arbitration International pp. 75–90

Summary:
The article provides an assessment of the state of international arbitration today, including an evaluation of various of the criticisms and proposed remedies that have received publicity within the professional arbitration community over the last year. From the perspective of a practitioner with several decades of experience in both US commercial litigation and international arbitration, the author explores why arbitration has not fulfilled its promise. The author rejects the commonly identified scapegoats, notes the shortcomings of many of the frequently advanced solutions and suggests several steps that could ameliorate certain of the perceived failings. The fundamental problem is that the parties to arbitration agreements and their counsel fail to establish and specify the desired objectives and a suitable framework at the time the arbitration provision is drafted and signed, because that provision is given too low a priority in the negotiation and documentation of the transaction. The author sets out some suggestions as to how that challenge might better be met by parties and their counsel.

Copyright © 2011 Kluwer Law International
All rights reserved

ISSN: 0957-0411
ID: ARBI2011005

Markus Burgstaller, Charles B. Rosenberg, 'Challenging International Arbitral Awards: To ICSID or not to ICSID?' (2011) 27 Arbitration International pp. 91–107

Summary:
A review of recent International Centre for Settlement of Investment Disputes (ICSID) annulment decisions indicates that ICSID awards are increasingly coming under tighter scrutiny. On the other hand, national courts in ‘arbitration friendly’ jurisdictions, such as England, France and the United States, appear to be more reluctant to set aside arbitral awards. There may, therefore, be a tendency that the non-ICSID route with the seat of arbitration in an ‘arbitration friendly’ country is the safer option for a claimant investor. This tendency is confirmed by our empirical study among international arbitration experts. This article discusses challenging international arbitral awards and explores the important question: to ICSID or not to ICSID?

Copyright © 2011 Kluwer Law International
All rights reserved

ISSN: 0957-0411
ID: ARBI2011006

Ruth Teitelbaum, 'Arbitrability: International and Comparative Perspectives, edited by LOUKAS A. MISTELIS and STAVROS L. BREKOULAKIS. (Published by Kluwer Law International, 2009)' (2011) 27 Arbitration International pp. 109–110

Copyright © 2011 Kluwer Law International
All rights reserved

ISSN: 0957-0411
ID: ARBI2011007