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Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty
Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty
Benjamin C McCarty
The drafters of the 1958 New York Convention intended Article V(2)(b) to be interpreted narrowly, and while most pro-arbitration national courts do maintain narrowly defined areas of public policy that are sufficient for refusal of the recognition and enforcement of a foreign arbitral award, this is not always the case. Developing states and jurisdictions that maintain corrupt or inefficient judicial systems have shown a greater willingness to invoke the public policy exception for a broader, amorphous variety of reasons. This phenomenon has created a sense of unpredictability among international investors, arbitrators, and business executives as to the amount of deference …
The History And The Current Development Of Commercial Arbitration In Kazakhstan, Venera Konussova
The History And The Current Development Of Commercial Arbitration In Kazakhstan, Venera Konussova
Venera Konussova
Kazakhstan has recently been taking steps to a new wave of modernization in order to enter 30 the most developed countries of the world. Such ambitious goal requires not only fast and effective development of all spheres of the economy but also significant improvement of legislation. Revision of legislation in the field of arbitration seeks a twofold goal; to create favorable conditions for the civil rights protection, and to improve the investment climate in particular. In order to obtain this goal, the Draft Law on Arbitration largely reconsidered existing legislation by incorporating progressive regulations, which help to overcome long lasting …
Arbitrator Behaviour In Asymmetrical Adjudication: An Empirical Study Of Investment Treaty Arbitration, Gus Van Harten
Arbitrator Behaviour In Asymmetrical Adjudication: An Empirical Study Of Investment Treaty Arbitration, Gus Van Harten
Gus Van Harten
The study examines arbitrator behaviour in the unique context of investment treaty arbitration. It employs the method of content analysis to test hypotheses of systemic bias in the resolution of jurisdictional issues in investment treaty law. Unlike earlier studies, the study examines trends in legal interpretation instead of case outcomes and finds statistically significant evidence that arbitrators favour: (1) the position of claimants over respondent states and (2) the position of claimants from major Western capital-exporting states over claimants from other states. There is a range of possible explanations for the results and further inferences are required to connect the …
Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong
Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong
Michigan Journal of International Law
Unlike many types of domestic arbitration where unreasoned awards (often called “standard awards”) are the norm, international commercial arbitration routinely requires arbitrators to produce fully reasoned awards. However, very little information exists as to what constitutes a reasoned award in the international commercial context or how to write such an award. This lacuna is extremely problematic given the ever-increasing number of international commercial arbitrations that arise every year and the significant individual and societal costs that can result from a badly written award. Although this Article is aimed primarily at specialists in international commercial arbitration, the material is also useful …
Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Julian Ku, Roger Alford, Bei Xiao
Perceptions And Reality: The Enforcement Of Foreign Arbitral Awards In China, Julian Ku, Roger Alford, Bei Xiao
Julian Ku
This Article represents the most recent comprehensive effort to assess China’s record in the enforcement of arbitration awards issued outside of China. This Article fills two gaps in academic literature on China’s treatment of foreign arbitral awards. First, unlike studies that rely mainly on anecdotal evidence, this study reviews and analyzes the reasoning of leading Chinese judicial opinions interpreting and applying China’s obligations under the New York Convention. Second, unlike prior empirical studies of Chinese courts’ enforcement rates, this study also surveys global arbitration practitioners to find out information about their experiences enforcing foreign arbitral awards in China. The Article …
Rescuing Arbitration In The Developing World: The Extraordinary Case Of Georgia, Steven Austermiller
Rescuing Arbitration In The Developing World: The Extraordinary Case Of Georgia, Steven Austermiller
Steven Austermiller
The country of Georgia has a long and interesting history with arbitration. From “telephone justice” to the criminal underworld to legitimacy, Georgian arbitration has survived many iterations. Now, as Georgia begins the EU accession process, it has a new arbitration law that incorporates international norms. This article analyzes the law, explores how arbitration has been implemented thus far, and discusses some of the challenges that remain. Drawing on his U.S. practice experience in arbitration and his work managing legal reform programs in Georgia and other countries, the author recommends some important changes to Georgia’s new arbitration regime. A particular area …
Kompetenz-Kompetenz: Varying Approaches And A Proposal For A Limited Form Of Negative Kompetenz-Kompetenz, Ashley Cook
Kompetenz-Kompetenz: Varying Approaches And A Proposal For A Limited Form Of Negative Kompetenz-Kompetenz, Ashley Cook
Pepperdine Law Review
This paper analyzes differing views and approaches to kompetenz-kompetenz and proposes a workable framework of kompetenz-kompetenz for the future. Part II provides an overview of the general principle of kompetenz-kompetenz, discussing the views of some of the leading international commercial arbitration scholars on kompetenz-kompetenz. Part III analyzes the approaches taken by the United States and the United Kingdom and uses them as helpful illustrations of kompetenz-kompetenz in practice. Part IV notes the shortcomings of the aforementioned approaches and proposes a limited form of negative kompetenz-kompetenz as the solution.
Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong
Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong
Faculty Articles
The primary focus of this Article is to analyze various process-oriented and structural issues relating to reasoned awards in international commercial arbitration so as to improve the practical and theoretical understanding of international awards. That discussion, which is found in Section IV, considers various factors from both the common law and civil law perspectives so as to take into account the blended nature of international commercial arbitration.
Of course, to be fully comprehensible, the detailed analysis in Section IV must first be put into context. Therefore, Section II describes the difficulties associated with defining a reasoned award in international commercial …