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Article
Publication date: 1 April 2004

Georgios I. Zekos

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and its way…

9274

Abstract

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and its way of using the law in specific circumstances, and shows the variations therein. Sums up that arbitration is much the better way to gok as it avoids delays and expenses, plus the vexation/frustration of normal litigation. Concludes that the US and Greek constitutions and common law tradition in England appear to allow involved parties to choose their own judge, who can thus be an arbitrator. Discusses e‐commerce and speculates on this for the future.

Details

Managerial Law, vol. 46 no. 2/3
Type: Research Article
ISSN: 0309-0558

Keywords

Article
Publication date: 11 July 2016

Yongkyun Chung and Hong-Youl Ha

The purpose of this paper is to identify the determinants of arbitrator acceptability and investigate whether the perceived costs of arbitration moderate the relationship between…

Abstract

Purpose

The purpose of this paper is to identify the determinants of arbitrator acceptability and investigate whether the perceived costs of arbitration moderate the relationship between arbitrator acceptability and arbitrator characteristics in international commercial arbitration.

Design/methodology/approach

A two-stage analytic process is used to test the dimensionality, reliability and validity of each construct and then the proposed hypotheses.

Findings

The findings show that the five constructs of arbitrator characteristics – reputation, practical expertise, legal expertise, experience and procedural justice – statistically significantly explain arbitrator acceptability. Moreover, perceived cost of arbitration moderates the relationship between arbitrator acceptability and arbitrator characteristics. However, the moderating effect of perceived costs of arbitration is not equal across characteristics.

Research limitations/implications

Knowledge regarding potential moderators of the strength of the indicators of arbitrator acceptability will be useful to future researchers in determining which variables to study in arbitrator selection research.

Practical implications

Useful guidelines in the selection of an international arbitrator are proposed.

Originality/value

This study contributes to arbitrator acceptability literature through the suggestion of a hypothesized model of arbitrator acceptability with auxiliary hypothesis of reputation in international contexts. In addition, this study investigates the moderating role of perceived cost of arbitration on the relationship between arbitrator acceptability and arbitrator characteristics.

Details

International Journal of Conflict Management, vol. 27 no. 3
Type: Research Article
ISSN: 1044-4068

Keywords

Article
Publication date: 10 May 2011

Ardeshir Atai

The purpose of this paper is to examine the remedies available under Iranian investment treaties for settlement of investment disputes. This includes the obligation of the Iranian…

Abstract

Purpose

The purpose of this paper is to examine the remedies available under Iranian investment treaties for settlement of investment disputes. This includes the obligation of the Iranian Government to provide foreign investors access to international arbitration. The sensitivity of the controversial Iranian nuclear program and the imposition of economic and financial sanctions on Iran will lead to the termination of many contracts between companies from Europe and the West and Iran, therefore, a viable solution must exist to address the rights and remedies of foreign investors. This article aims to provide an insight into Iranian treaties.

Design/methodology/approach

The main method was a survey of different treaties signed by Iran.

Findings

The discussion revealed that there are currently more than 50 treaties signed and ratified by Iran which provide arbitration as a dispute resolution forum. There are many treaties between the member countries of the European Union which make it important for the research. Iranian treaties guarantee international law remedies to foreign companies with investment in Iran by allowing them to seek redress in an international forum.

Practical implications

Iran has not signed the ICS1D Convention, meaning that the arbitration proceedings will be subject to ad hoc arbitration rules of UNCITRAL. Furthermore, ICSID rules on enforcement of the award do not apply. Therefore, the winning party must go through the Iranian courts to enforce its awards.

Originality/value

The value of the paper is to government organization, international institutions and multinational companies with substantial economic interest in Iranian energy and natural resources. For the first time, the topic has been covered in a research paper. There are no articles in Iranian bilateral investment treaties (BITs) addressing dispute resolution through arbitration. This is the first piece of work that actually conducted a thorough analysis of Iranian BITs.

Details

Journal of Money Laundering Control, vol. 14 no. 2
Type: Research Article
ISSN: 1368-5201

Keywords

Open Access
Article
Publication date: 12 February 2020

Sabah Ahmd Farag

This theme will be addressed through main points: Special Nature of Investment Disputes and its methods of peaceful settlement. International legal framework governing Arbitration

6559

Abstract

Purpose

This theme will be addressed through main points: Special Nature of Investment Disputes and its methods of peaceful settlement. International legal framework governing Arbitration in investment disputes: A. Multilateral legal framework. B. Bilateral legal framework/Investment promotion and protection agreementsTypes of arbitration in investment disputes. The Egyptian experience in investment disputes arbitration. The National legal framework. Egypt on the map of investment disputes in the world. A case study. Conclusion: Results related to the legal framework regulating investment disputes in Egypt. Results related to The arbitration cases against Egypt.

Design/methodology/approach

The researcher investigates the subject of international arbitration in investment disputes in the framework of voluntary theory, which is based on the premise that the satisfaction of people who are addressing the international legal norm is the basis of the same rule. In other words, the basis of international law is based on the satisfaction of the State and other international legal persons Both, and then express or implied consent.

Findings

Despite the availability of domestic and regional arbitration mechanisms in Egypt represented by a large number of cases.

Research limitations/implications

The theme for the study primarily on Egypt and the international arbitration of investment disputes, through theoretical and practical study of disputes arbitration which Egypt is a party defendant in which to focus on what was issued in which the provisions of the International Center for Settlement of Investment Disputes, in an attempt to find out the reasons for the verdicts image released it, where it came mostly against Egypt, and whether these judgments against them in investment disputes due to reasons related to the legal framework of the arbitration process, or for reasons of bodies of arbitration issued by those provisions, or to the defense, which represents the Egyptian party, or to the circumstances Economic and political (which represents the investment climate).

Originality/value

The proposed solutions to improve the conditions and factors surrounding the arbitration disputes that Egypt is waging against foreign investors, whether they are initially alleged or accused of drafting agreements and contracts, through amending the relevant legislation and laws, selecting arbitration bodies and defense bodies.

Details

Review of Economics and Political Science, vol. 8 no. 6
Type: Research Article
ISSN: 2356-9980

Keywords

Article
Publication date: 31 October 2008

Nour Mohammad and Rakiba Nabi

The purpose of this paper is to focus on some of the issues and problem of implementation of foreign arbitral awards in Bangladesh.

617

Abstract

Purpose

The purpose of this paper is to focus on some of the issues and problem of implementation of foreign arbitral awards in Bangladesh.

Design/methodology/approach

Based upon theoretical sources and empirical data, the legal provision concerning the enforcement of foreign arbitral awards was studied and the case‐law invoking the Arbitration Act 2001 discussed.

Findings

The finding of this research is to present the new framework of arbitration law in Bangladesh which came into force 10 April 2001 and discuss the legislative provision in the face of increasing foreign investment in Bangladesh in various sector.

Research limitations/implications

The principal objectives were to study the general context of the arbitration mechanism in international commercial disputes.

Practical implications

The rationale for arbitration in international commercial disputes and the imperatives for resorting to arbitration as a tool for alternative dispute resolution are discussed.

Originality/value

This paper is an attempt to analyze how a foreign arbitral award is enforceable in Bangladesh and to what extent the recent legal development is effective in resolving international commercial disputes.

Details

Humanomics, vol. 24 no. 4
Type: Research Article
ISSN: 0828-8666

Keywords

Article
Publication date: 19 June 2009

Muhammad Abu Sadah

The purpose of this paper is to focus on the regional perceptions of the Middle East region in relation to international commercial arbitration and show how these perceptions…

Abstract

Purpose

The purpose of this paper is to focus on the regional perceptions of the Middle East region in relation to international commercial arbitration and show how these perceptions influence the attempts to harmonise the modern international law in the Middle East region.

Design/methodology/approach

Legal positivism as a general philosophy, mainly influenced by John Austin, is used as an analytical tool in order to identify the general trends from Western and Middle East cultural perspectives that relate to international commercial arbitration.

Findings

The paper shows how the Middle East region has different social and legal values between the West and the Middle East region in respect to the primarily three general and important features of the law – namely, normative, institutionalised, and coercive. Positivism legal theory shows that such success in the context of western European commercial law is inappropriate in the Middle East where different cultural norms make its wholesale and unqualified transferability problematic, notwithstanding its acceptance in highly generalised terms.

Practical implications

The paper generates a proposition that reforms are more likely to succeed if adjustments to the cultural environment are made. Thus, it supports the argument that regional values can add to the global activities of the harmonisation process of international commercial arbitration law.

Originality/value

The paper provides a clear understanding of the guidelines for the reform and development of Middle East international commercial arbitration. Legal culture should be taken into consideration if a successful reform is to be achieved.

Details

Journal of International Trade Law and Policy, vol. 8 no. 2
Type: Research Article
ISSN: 1477-0024

Keywords

Article
Publication date: 18 October 2019

Rao Qasim Idrees, Rohimi Shapiee and Haniff Ahamat

The phenomena of arbitral forum shopping to resolve a commercial investment dispute is still under development and more complicated in many states. However, for Pakistan, it seems…

Abstract

Purpose

The phenomena of arbitral forum shopping to resolve a commercial investment dispute is still under development and more complicated in many states. However, for Pakistan, it seems in an evolutionary phase, where the country is struggling hard to adopt the best practice of dispute resolution through forum shopping clauses. This struggle is even more inflated with huge Chinese investment through China Pakistan economic corridor (CPEC) projects in Pakistan, which come alongside with commercial investment disputes. For this purpose, the current treaty or contract-based system between China and Pakistan and litigation based domestic civil court structure look obsolete, hence, appear to require reinstatement of forum shopping clauses under concerned treaties or contracts for CPEC investment-related issues.

Design/methodology/approach

The authors choose a legal research method. The research design is a comparative analysis between CPEC contracts and dispute resolution mechanism between China and Pakistan and also the domestic civil court’s litigation system. This analysis selected by the authors due to inefficient bilateral investment arrangements and efficient resolution of future commercial disputes in CPEC. While the international arbitration system is included in the assessment were particular in the time and space context. The comparison comprises on dispute resolution clauses in free trade agreement (FTA) and bilateral investment treaties (BIT) between China and Pakistan and the system of resolving disputes by CPEC clauses.

Findings

The authors finds that in the absence of CPEC forum shopping clause under dispute resolution system, Pakistan is highly at risk to lose foreign investors, and therefore, set back the goal of long term economic sustainability in the region. However, China has already made its investment policies safer with establishing three international commercial courts (also referred to as Belt and Road courts), one in Xi’an for the land-based Silk Road Economic Belt, one in Shenzhen for the Maritime Silk Road and one in Beijing that will serve as the headquarters. These courts will be offering litigation, arbitration and mediation services. According to one view, China aims to have all belt and road initiative (BRI) disputes resolved by these courts. This makes Pakistan position more awkward and needs proactive measures, as CPEC investment is based on Pakistan foreign direct investment policies and legal structure. Therefore, it will be complicated and less favourable for Pakistan to deal with such cases under Chinese Courts.

Originality/value

The paper’s primary contribution is finding that comprehensive analysis of alternative dispute resolution mechanism between China and Pakistan over CPEC investment is inevitable. A socio-legal research combine with an examination of Singapore International Commercial Court functions and mechanism and CPEC plans further contributes to ascertain the best model of the settlement of commercial disputes under investments in Pakistan. This research paper anticipates future economic and legal problems, which Pakistan may encounter.

Details

Journal of International Trade Law and Policy, vol. 18 no. 3
Type: Research Article
ISSN: 1477-0024

Keywords

Article
Publication date: 12 February 2018

Moses Oruaze Dickson

Party autonomy is a core tenet of the arbitral process which bestows certain contractual freedoms upon the disputing parties. This paper aims to utilise both doctrinal analysis…

2015

Abstract

Purpose

Party autonomy is a core tenet of the arbitral process which bestows certain contractual freedoms upon the disputing parties. This paper aims to utilise both doctrinal analysis and theoretical conceptualisation to examine the principle of party autonomy in international commercial arbitration. It examines the extent to which certain exceptions to this principle, such as public policy and natural justice, where autonomy impedes on matters of justice and delocalisation, have restricted the principle in practice.

Design/methodology/approach

Party autonomy is a core tenet of the arbitral process, which bestows certain contractual freedoms upon the disputing parties. However, in spite of its appeal as an unfettered right, it has been challenged by an array of exceptions that have rendered it largely unqualified in international commercial arbitration. This paper utilises both doctrinal analysis and theoretical conceptualisation to examine the principle of party autonomy in international commercial arbitration. It examines the extent to which certain exceptions to this principle, such as public policy and natural justice, where autonomy impedes on matters of justice and delocalisation, have restricted the principle in practice. Furthermore, approaches to party autonomy in two distinct legal systems, the Common law system in England and Sharia law in Saudi Arabia, are examined to ascertain the extent to which party autonomy has been hindered by these exceptions.

Findings

Arbitration continued to grow throughout the forgone centuries, with key philosophers, such as Aristotle, advocating the advantages of arbitration over litigation. In addition, the emergence of party autonomy occurred in the sixteenth century, with Dumoulin proposing that the parties’ will in contracts is sovereign. Thus, party autonomy began to develop into a significant aspect of contract law, which plays a pivotal role in arbitration. This is because the principle has its roots in the autonomous will of the parties to conduct the arbitral process as they wish. The paper explored the debate regarding party autonomy and its development into the contemporary world of arbitration. It examined its origins and how it has grown into the core fabric of arbitration today. Emphasis was provided in relation to the nature of the principle, which was highly relevant to the debate. This is because it is vital to appreciate issues such as freedom of contract to have a deeper insight into the principle and what it entails. The limitations of party autonomy were extensively examined, and the public policy exception was found to construe narrowly by a vast number of States. As a result, it was suggested that the exception should be more than merely a theoretical defence. Thus, it should be exercised where enforcement of an arbitral award would disregard unjust or improper results. Furthermore, the natural justice principle was observed as a double-edged sword that protected the parties in the arbitral process. However, it also hampered the effectiveness of party autonomy by impeding upon the parties’ freedom to contract, which ultimately limited the principle. Thus, it is concluded that the principle of party autonomy is not absolute. While it would be desirable if it was, certain issues cannot be resolved so easily. Limitations to party autonomy have existed since its inception and are most likely to continue. Although this is not the ideal situation for proponents of autonomy, it nevertheless appears to be the case. However, it is proposed that limitations to party autonomy should be chipped away as much as possible. This would enable the autonomy of the parties to be upheld at a much higher rate.

Originality/value

This paper utilises both doctrinal analysis and theoretical conceptualisation to examine the principle of party autonomy in international commercial arbitration. Secondary sources were also used.

Details

International Journal of Law and Management, vol. 60 no. 1
Type: Research Article
ISSN: 1754-243X

Keywords

Article
Publication date: 6 June 2016

Byung-Mun Lee and Eunok Park

The purpose of this paper is to provide Korean merchants and practitioners who are not English native speakers with the practical advices and suggestions in drafting arbitration

Abstract

Purpose

The purpose of this paper is to provide Korean merchants and practitioners who are not English native speakers with the practical advices and suggestions in drafting arbitration agreements.

Design/methodology/approach

The doctrine of separability of arbitration and the competence-competence principle are studied based on the rules of international conventions and internationally recognized arbitral institutes. In addition, the laws of two common law jurisdictions, which are the USA and the UK are discussed with the Korean arbitration law, which follows the civil law system. This study also includes analysis of cases in order to show application of these two principles to practice and to give practical advices and implications to practitioners.

Findings

Most national legislatures and jurisdictions approve the doctrine of separability of arbitration agreement and the competence-competence principle under international commercial arbitration. When there is a dispute regarding the existence or the validity of arbitration agreement, it is determined based on the prima facie test without being affected by the main contract in which the arbitration agreement is inserted. In practice, however, there are many occasions where the arbitration agreements are void or inoperable because of its contents. Many practical advices and suggestions are provided.

Originality/value

This paper analyzes arbitration agreements which are used in practice so that it provides many practical advices to practitioners in terms of legal effects of languages and linguistic use.

Details

Journal of Korea Trade, vol. 20 no. 2
Type: Research Article
ISSN: 1229-828X

Keywords

Article
Publication date: 22 June 2010

Muhammad Abu Sadah

The purpose of this paper is to examine the main contract principles which govern the international arbitration contract with special emphasis to examine contract principle found…

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Abstract

Purpose

The purpose of this paper is to examine the main contract principles which govern the international arbitration contract with special emphasis to examine contract principle found of the Middle East, how international principles of contract are perceived in the region, and whether there are any dominant contract principles.

Design/methodology/approach

A general exploratory research procedure used to give a better grasp of various aspects of socio‐legal approaches. The paper seeks to create knowledge that can be used to retrieve some pressing social and organisational understanding in the said region. The first part of the paper examines the role of ethics and tradition in understanding Middle Eastern contract principles. The second part examines the impact of Islamic Law on commercial contract principles. The third section analyses the regional perception of international contract principles. Finally, the paper addresses some contemporary issues of international contracts in the Middle East.

Findings

The paper showed that the legal perceptions of international contract principles reflect regional legal thinking which has been influenced by a mixed understanding of regional traditions, Islamic contract law principles as well as Western contract principles when these principles match regional legal culture. Overall, it showed that still under such mixed understanding, there are strong regional legal traditions and these are found in Islamic contract principles and affects commercial contract experiences. In general, a significant difference still exists between modern international contract principles and those in the Middle East.

Practical implications

The paper generates a knowledge that mixed understanding in regard to international contract arbitration principles due historical and cultural reasoning. Arab States does not share common understanding of international contract principles. Thus, it is very superfluous to propose the argument that there is sole Middle Eastern regional perception which dominates every Arab State. Therefore, special understandings and considerations should be given to every international arbitration contract from certain Arab State entity to another.

Originality/value

The paper provides a clear understanding of the guidelines for international commercial arbitration contract in the Middle East. Legal culture should be taken into consideration if a successful contract implementation has to be achieved.

Details

Journal of International Trade Law and Policy, vol. 9 no. 2
Type: Research Article
ISSN: 1477-0024

Keywords

1 – 10 of over 3000