- Commercial and other (religious)
- inter-state
Contemporary use
- commercial and other
- international
- inter-state
- new uses
- sports
- investor-state
- double taxation
- financial services
- aviation
- class actions
- other
Reasons to arbitrate
- expertise, efficiency, enforceability
- neutrality
- party autonomy
implication of right to arbitrate
- existence and validity of arbitration agreement
- swiss federal tribunal (nokia) ("since the derogation from a constitutional guarantee, it should not too readily be admitted that an arbitration agreement has been concluded if the point is contested")
- Hong Kong (lucky-goldstar)
- simula, inc v autolive, inc ("the clear weight of authority holds that the most minimal indication of the parties' intent to arbitrate must be given full effect, especially in international disputes")
- gangel v de groot ("the agreement to arbitrate must be express, direct and unequivocal as to the disputes to be submitted to arbitration")
- fiona trust and mitshubishi motors
- procedural guarantees
- confidentiality v transparency
- finality v appellate review
- reasoned decisions
- independence and impartiality
- "fragmentation"
process
- drafting an arbitration clause
- choice of law to govern the procedure
- case
- whitworth estates (manchester) v james miller & partners [1970] AC583
judicial view
- what do judges think of arbitration?
- some jurisdictions more arbitration friendly than others
- case
- fiona trust (premium nafta products ltd v fili shipping company [2007] UKHL 400)
- increasingly being used
- international rules and supervision by institutions (eg hkiac)
- rules of icc
funding
- third party funding a growing phenomenon
- is it in the public interest?
- accepted in hk (arbitration ordinance, part 10A, sections 98e-98w)
costs
- cost/fee shifting
arbitrators
- Judges sitting as arbitrators
- cost/fee shifting
- one way
- two way
arbitrators
- Judges sitting as arbitrators
- an amicable and benign, not distant and authoritarian, relationship
- sitting in private, no in public
- an award, not a judgement
- dissenting arbitrator
- why the practice is to have three, not two arbitrators
- should the dissenter issue a dissenting opinion?
- case
- transfield shipping inc v mercator shipping inc [2008] UKHL 48
National constitutions
- france - constitutions of year one and year three
- germany - basic law, section 2(1); judgment of 3apr1000 (bundesgerichtshof); judgment of 23aug1963 (german federal labor court)
- united states- kona village realty v sunstone realty
- brazil
- quebec
- panama - article 202 supreme court decision
international instruments
- new york convention, art II(1) and II(3)
- UNCITRAL model law on international commercial arbitration
- international tribunals: denial of justice
Treaty-based Investment arbitration
- number of claims etc - unctad report
- experts
Icc
- rules of arbitration http://www.iccwbo.org/products-and-services/arbitration-and-adr/arbitration/icc-rules-of-arbitration/
- rules of mediation http://www.iccwbo.org/products-and-services/arbitration-and-adr/mediation/rules/
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention, was adopted by a United Nations diplomatic conference on 10 June 1958 and entered into force on 7 June 1959. The Convention requires courts of contracting states to give effect to private agreements to arbitrate and to recognize and enforce arbitration awards made in other contracting states. Widely considered the foundational instrument for international arbitration, it applies to arbitrations that are not considered as domestic awards in the state where recognition and enforcement is sought.
Although New York Convention is very successful, nowadays many countries have adopted UNCITRAL Model Arbitration Law and widely recognize foreign arbitral awards. Therefore, the New York Convention is not as important as it once was. For a non-contracting state, such as Taiwan, its arbitral awards can be recognized by other countries according to their domestic laws, and vice versa.In 1953, the International Chamber of Commerce (ICC) produced the first draft Convention on the Recognition and Enforcement of International Arbitral Awards to the United Nations Economic and Social Council. With slight modifications, the Council submitted the convention to the International Conference in the Spring of 1958. The Conference was chaired by Willem Schurmann, the Dutch Permanent Representative to the United Nations and Oscar Schachter, a leading figure in international law who later taught at Columbia Law School and the Columbia School of International and Public Affairs, and served as the President of the American Society of International Law.
resources
- https://www.transnational-dispute-management.com/
journal
- asian dispute review http://www.asiandr.com
law firms
- cms hasche sigle
- germany - basic law, section 2(1); judgment of 3apr1000 (bundesgerichtshof); judgment of 23aug1963 (german federal labor court)
- united states- kona village realty v sunstone realty
- brazil
- quebec
- panama - article 202 supreme court decision
international instruments
- new york convention, art II(1) and II(3)
- UNCITRAL model law on international commercial arbitration
- international tribunals: denial of justice
- saipem v bangladesh
- ATA construction v jordan
- white industries v india
- stran greek refineries v greece (european court of human rights)
- kib-stib v serbia (european court of human rights)
- https://www.straitstimes.com/singapore/key-facts-about-the-singapore-convention-on-mediation Forty-six countries signed the Singapore Convention on Mediation on Wednesday (Aug 7) - the day it opened for signatures. The United States and China were among the first signatories of the treaty - also known as the United Nations (UN) Convention on International Settlement Agreements Resulting from Mediation - which will provide for the enforcement of mediated settlement agreements across countries. 《新加坡調解公約》去年12月份由聯合國大會通過，這項公約須至少獲得三個國家簽署及核准才能生效，並且僅適用於商業和解協議。新加坡《聯合早報》特別提出，亞洲四大經濟體中，三個簽署了公約，唯獨日本並未這麼做。此外，新加坡內政部長兼律政部長尚穆根之前透露，歐盟國家也尚未加入簽署國行列。尚穆根說，歐盟必須先搞清國家層面的加入是否可行，或是歐盟作為整體負責此事。http://paper.takungpao.com/resfile/PDF/20190808/PDF/a17_screen.pdf
Treaty-based Investment arbitration
- number of claims etc - unctad report
- experts
- Prof kaj hober mannheimer swartling, speaker at cityu annual goff arbitratiin kecture on 13mar13, according to hober, china has the second largest number of bits in the world. The first generation of chinese bits (with states in which chinese natural resiurces investments are made, by ndrc, mofcom and mfa) only provides for a limited right to arbitration for compensation icw expropriation or sometimes no right to arbitration at all
Icc
- rules of arbitration http://www.iccwbo.org/products-and-services/arbitration-and-adr/arbitration/icc-rules-of-arbitration/
- rules of mediation http://www.iccwbo.org/products-and-services/arbitration-and-adr/mediation/rules/
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention, was adopted by a United Nations diplomatic conference on 10 June 1958 and entered into force on 7 June 1959. The Convention requires courts of contracting states to give effect to private agreements to arbitrate and to recognize and enforce arbitration awards made in other contracting states. Widely considered the foundational instrument for international arbitration, it applies to arbitrations that are not considered as domestic awards in the state where recognition and enforcement is sought.
Although New York Convention is very successful, nowadays many countries have adopted UNCITRAL Model Arbitration Law and widely recognize foreign arbitral awards. Therefore, the New York Convention is not as important as it once was. For a non-contracting state, such as Taiwan, its arbitral awards can be recognized by other countries according to their domestic laws, and vice versa.In 1953, the International Chamber of Commerce (ICC) produced the first draft Convention on the Recognition and Enforcement of International Arbitral Awards to the United Nations Economic and Social Council. With slight modifications, the Council submitted the convention to the International Conference in the Spring of 1958. The Conference was chaired by Willem Schurmann, the Dutch Permanent Representative to the United Nations and Oscar Schachter, a leading figure in international law who later taught at Columbia Law School and the Columbia School of International and Public Affairs, and served as the President of the American Society of International Law.
resources
- https://www.transnational-dispute-management.com/
journal
- asian dispute review http://www.asiandr.com
- http://www.kluwerlawonline.com/toc.php?pubcode=ADR
law firms
- cms hasche sigle
- spoke on rcep at cuhk fdi form in may17
- ruling by singapore international arbitration centre
- amazon re future group and reliance, retail market in india oct2020
- Cairn Energy has moved a US court suing Air India in order to enforce a $1.2 billion arbitration award that it won against India in a tax dispute case.Ever since the arbitration award, Cairn Energy was identifying Indian assets abroad to get the award enforced. These assets included Air India, cash held by state-run banks abroad and ships.According to news agency Reuters, Cairn filed the lawsuit on Friday in the US District Court for the Southern District of New York, seeking to make Air India liable for the judgement that was awarded to Cairn. The lawsuit argued that the carrier as a state-owned company, is "legally indistinct from the State itself"."The nominal distinction between India and Air India is illusory and serves only to aid India in improperly shielding its assets from creditors like (Cairn)," the filing said.On May 7, quoting two unnamed government sources and a banker, Reuters reported that India has asked state-run banks to withdraw funds from their foreign currency accounts abroad.This, the report said, was because New Delhi "feared Cairn Energy may try to seize the cash after an arbitration ruling in a tax dispute".The move to sue Air India puts pressure on India to pay the sum of $1.2 billion plus interest and costs that the British firm was awarded by an arbitration tribunal in December. The body ruled India breached an investment treaty with Britain and said New Delhi was liable to pay.https://www.indiatoday.in/business/story/cairn-energy-sues-air-india-in-us-court-to-recover-1-2-billion-arbitration-award-against-india-1802939-2021-05-15
Hong kong
- 立法會財務委員會昨日通過多項撥款，涉及約295億元。有關項目包括在律政司一般非經常開支項目下，開立一筆為數一億元的新承擔額，用以資助非政府機構發展及提升網上爭議解決及交易平台，以及資助平台初期運作所需，涉及一億港元。本身是執業律師的議員周浩鼎表示，該中心是香港唯一一個亞太經濟合作組織批准提供服務的代表機構，認為在國際上普及及宣傳可做得更好，對提高國際地位有幫助，周關注該公司，未來有否實際計劃向其他國家推廣此平台。仲裁獲160國家認可議員梁志祥詢問，中心是否和內地執法部門簽署了互認角色的文件。另議員鄭松泰則提到私隱問題，使用服務的公司或當事人是否需要親身到香港簽署文件，抑或全部在網上進行，又詢問中心如何成為一家有認受性的公司。律政司普惠避免及解決爭議辦公室主任丁國榮回覆指，平台已和內地簽署備忘錄，希望將來能面向國際發展。中心董事會主席蘇紹聰說，平台以科技作為特點，去年3月曾參與跨國研討會，此類型的推廣活動會繼續進行。董事黎逸軒則指，在香港達成的仲裁在全球其他160個國家也是獲得認可，而裁決在內地同樣獲得認可和執行，系統提供的平台可在網上簽署文件，當事人可考慮全部在網上進行。https://orientaldaily.on.cc/cnt/news/20210109/00176_037.html
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