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1 – 10 of over 1000Investigates 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…
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.
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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.
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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.
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The purpose of this paper is to focus on some of the issues and problem of implementation of foreign arbitral awards in Bangladesh.
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.
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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…
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.
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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.
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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…
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.
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The purpose of this paper is to evaluate the existing legal basis, and its practical application, of an arbitrator’s competence to raise on her own initiative money laundering…
Abstract
Purpose
The purpose of this paper is to evaluate the existing legal basis, and its practical application, of an arbitrator’s competence to raise on her own initiative money laundering issues.
Design/methodology/approach
The research focusses on presenting the essence of the problem through evaluation of the legal basis for the arbitrators to raise money laundering concerns on their own initiative and the examples of so being done in international commercial arbitration.
Findings
This paper concludes that arbitrators do not presently have a solid legal basis that authorises them to act sua sponte against money laundering.
Originality/value
The originality and value of this paper lies in its emphasis on theoretical and practical issues related to money laundering in international commercial arbitration. It argues in favour of an explicit recommendation to be incorporated in the 2012 Recommendations of the Financial Action Task Force (FATF) that international commercial arbitrators address money laundering on their own initiative.
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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.
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Fabian Teichmann, Sonia Ruxandra Boticiu and Bruno S. Sergi
The purpose of this study is to provide a firsthand perspective on the challenges and risks that can arise in arbitration proceedings.
Abstract
Purpose
The purpose of this study is to provide a firsthand perspective on the challenges and risks that can arise in arbitration proceedings.
Design/methodology/approach
To investigate the concrete methods money launderers use, a qualitative study was conducted with 10 alleged money launderers and 18 prevention experts. The results were then tested quantitatively, and it was concluded that among money launderers, the highly regulated financial sector is less popular than other sectors.
Findings
Money launderers relocate to unregulated sectors or offshore banks to avoid being questioned by compliance officers. Therefore, it is necessary for arbitrators involved in commercial or investor–state arbitration to have the expertise to readily identify the issues raised by these criminal law concepts and provide answers.
Originality/value
This paper examines the intersection between the areas of international commercial arbitration and money laundering, bribery, as well as embezzlement. At the same time, it draws attention to the need to analyze compliance issues in arbitration proceedings.
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