In Uber v. Heller – a case involving an employment class action subject to an international arbitration agreement – the Supreme Court of Canada decided three issues that threatened to undermine the enforceability of international arbitration agreements in Canada. The Court: (1) read the scope of the Canadian International Commercial Arbitration Acts narrowly; (2) created an exception to the competence-competence principle; and (3) relaxed the test for invalidating arbitration agreements on unconscionability grounds. At the same time, Uber was decided in a highly specific factual context and its ultimate impact on the enforcement of international arbitration agreements was largely left to be determined by lower courts in future cases. This article examines two such cases involving consumer class actions subject to international arbitration agreements. The article analyses the courts’ application of Uber and its effect on their reasoning and on the outcome of these cases. While it is difficult to predict how Uber will unfold in the lower courts over time, the two cases examined in this article suggest that Uber is unlikely to affect the enforcement of most international arbitration agreements in the context of consumer class actions – perhaps the context most akin to that of Uber – let alone in more traditional commercial contexts. Canada, international arbitration agreements, commercial, Uber v. Heller, employment, consumer, class action, enforcement
{"title":"International Arbitration Agreements in Canada Post-Uber","authors":"Tamar Meshel","doi":"10.54648/joia2023017","DOIUrl":"https://doi.org/10.54648/joia2023017","url":null,"abstract":"In Uber v. Heller – a case involving an employment class action subject to an international arbitration agreement – the Supreme Court of Canada decided three issues that threatened to undermine the enforceability of international arbitration agreements in Canada. The Court: (1) read the scope of the Canadian International Commercial Arbitration Acts narrowly; (2) created an exception to the competence-competence principle; and (3) relaxed the test for invalidating arbitration agreements on unconscionability grounds. At the same time, Uber was decided in a highly specific factual context and its ultimate impact on the enforcement of international arbitration agreements was largely left to be determined by lower courts in future cases. This article examines two such cases involving consumer class actions subject to international arbitration agreements. The article analyses the courts’ application of Uber and its effect on their reasoning and on the outcome of these cases. While it is difficult to predict how Uber will unfold in the lower courts over time, the two cases examined in this article suggest that Uber is unlikely to affect the enforcement of most international arbitration agreements in the context of consumer class actions – perhaps the context most akin to that of Uber – let alone in more traditional commercial contexts.\u0000Canada, international arbitration agreements, commercial, Uber v. Heller, employment, consumer, class action, enforcement","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44867752","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Murmansk State Steamship Line v. Kano Oil Millers Ltd, City Engineering Nigeria Ltd v. Federal Housing Authority and Tulip Nigeria Ltd v. Noleggioe Transport Maritime SAS, the Supreme Court of Nigeria held that the limitation period for enforcing arbitral awards runs from when the cause of action for arbitration arose and not when the awards were made, unless they contain Scott v. Avery clauses. The purpose of this article is to analyse if and to what extent such decisions constitute denial of access to justice against arbitral award creditors. Arbitration, international commercial arbitration, arbitral awards, enforcement of arbitral awards, limitation period, computation of time, Nigeria, Arbitration and Conciliation Act 1988, Supreme Court of Nigeria, access to justice
{"title":"Limitation Period for Enforcing Arbitral Awards in Nigeria: A Case of Justice Without Remedy","authors":"Kenneth Ugwuokpe","doi":"10.54648/joia2023015","DOIUrl":"https://doi.org/10.54648/joia2023015","url":null,"abstract":"In Murmansk State Steamship Line v. Kano Oil Millers Ltd, City Engineering Nigeria Ltd v. Federal Housing Authority and Tulip Nigeria Ltd v. Noleggioe Transport Maritime SAS, the Supreme Court of Nigeria held that the limitation period for enforcing arbitral awards runs from when the cause of action for arbitration arose and not when the awards were made, unless they contain Scott v. Avery clauses. The purpose of this article is to analyse if and to what extent such decisions constitute denial of access to justice against arbitral award creditors.\u0000Arbitration, international commercial arbitration, arbitral awards, enforcement of arbitral awards, limitation period, computation of time, Nigeria, Arbitration and Conciliation Act 1988, Supreme Court of Nigeria, access to justice","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45945417","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article reports on the results of an empirical study focused on ‘carve outs’ with respect to financial regulation in bilateral investment treaties (BITs) and free trade agreements (FTAs) entered into during the five-year period between 2015 and 2019. It did so by analysing the eighty-five BITs and FTAs signed in the period 2015 to 2019 inclusive, which were available in English in the UNCTAD Investment Policy hub, identifying three primary types of carve outs. We define carve outs as clauses which either provide an exception or defence to investor-state dispute settlement (ISDS) claims in certain circumstances or exempt altogether particular conduct by a state from the scope of ISDS, in order to protect state sovereignty. The article explores the likely effectiveness of those carve outs in protecting state sovereignty and minimizing ISDS claims against states arising out of regulatory measures taken to protect national economies in the event of crisis. The inclusion of appropriate carve outs is likely to support perceptions of the legitimacy of ISDS in BITs and FTAs. The article considers some earlier cases of ISDS relating to financial regulation and considers the impact that some of the more modern carve outs might have had on those scenarios. The article concludes with recommendations for model clauses and approaches in BITs and FTAs. Investor-state arbitration, financial regulation, state sovereignty, regulatory carve outs, BITs and FTAs
{"title":"ISDS and States’ Ability to Deal with Financial Crisis","authors":"Therese Wilson, Yuri Banens, Shanayah Sharif","doi":"10.54648/joia2023012","DOIUrl":"https://doi.org/10.54648/joia2023012","url":null,"abstract":"This article reports on the results of an empirical study focused on ‘carve outs’ with respect to financial regulation in bilateral investment treaties (BITs) and free trade agreements (FTAs) entered into during the five-year period between 2015 and 2019. It did so by analysing the eighty-five BITs and FTAs signed in the period 2015 to 2019 inclusive, which were available in English in the UNCTAD Investment Policy hub, identifying three primary types of carve outs. We define carve outs as clauses which either provide an exception or defence to investor-state dispute settlement (ISDS) claims in certain circumstances or exempt altogether particular conduct by a state from the scope of ISDS, in order to protect state sovereignty. The article explores the likely effectiveness of those carve outs in protecting state sovereignty and minimizing ISDS claims against states arising out of regulatory measures taken to protect national economies in the event of crisis. The inclusion of appropriate carve outs is likely to support perceptions of the legitimacy of ISDS in BITs and FTAs. The article considers some earlier cases of ISDS relating to financial regulation and considers the impact that some of the more modern carve outs might have had on those scenarios. The article concludes with recommendations for model clauses and approaches in BITs and FTAs.\u0000Investor-state arbitration, financial regulation, state sovereignty, regulatory carve outs, BITs and FTAs","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45180051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
With the Unitary Patent (UP) and Unified Patent Court, some Member States of the European Union are creating a new system that reaches beyond the existing European Patent (EP). The goal of the Agreement on a Unified Patent Court is to reduce fragmentation and provide more uniform territorial patent protection by establishing a centralized patent court. In an effort to promote alternative dispute resolution, the Agreement also provides for the creation of a Patent Mediation and Arbitration Centre. This is the first statutory mechanism that recognizes the availability of arbitration for resolving certain types of intellectual property (IP) disputes at an EU-wide level. With thirteen states having ratified the Protocol on Provisional Application, the entry-into-force clause has been triggered and the last part of the preparatory work has commenced. The new system is expected to be fully implemented in early 2023. This article first introduces the new Centre and its role within the framework of the Unitary Patent System (section 1). It then explains the operation of the Centre (section 2) and analyses the Centre’s impact on the arbitrability of claims relating to patent invalidity or scope (section 3).
{"title":"A New Patent Mediation and Arbitration Centre for Europe","authors":"G. Born, Sonya Ebermann","doi":"10.54648/joia2023011","DOIUrl":"https://doi.org/10.54648/joia2023011","url":null,"abstract":"With the Unitary Patent (UP) and Unified Patent Court, some Member States of the European Union are creating a new system that reaches beyond the existing European Patent (EP). The goal of the Agreement on a Unified Patent Court is to reduce fragmentation and provide more uniform territorial patent protection by establishing a centralized patent court. In an effort to promote alternative dispute resolution, the Agreement also provides for the creation of a Patent Mediation and Arbitration Centre. This is the first statutory mechanism that recognizes the availability of arbitration for resolving certain types of intellectual property (IP) disputes at an EU-wide level. With thirteen states having ratified the Protocol on Provisional Application, the entry-into-force clause has been triggered and the last part of the preparatory work has commenced. The new system is expected to be fully implemented in early 2023. This article first introduces the new Centre and its role within the framework of the Unitary Patent System (section 1). It then explains the operation of the Centre (section 2) and analyses the Centre’s impact on the arbitrability of claims relating to patent invalidity or scope (section 3).","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47919969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
More and more publications address the validity of electronic arbitral awards. The underlying assumptions of such articles are often that (1) the arbitration community does not make use of electronic awards; and (2) that the reason for that is that there may be legal validity issues due to the formal requirements that apply to them. This article verifies whether that is really the case, and does so on the basis of questionnaire data obtained from leading arbitration institutions during Spring and Summer 2022. The data from the questionnaire pertains to (1) how exactly arbitral institutions render arbitral awards in practice; and (2) how they perceive electronic awards (in general and with respect to their desirability and legality). This article finds that, indeed, institutions rarely make use of electronic awards. Their reasons for doing so are both legal and practical in nature. Technology, Digitalization, Procedure, Arbitral Awards, Electronic Awards, Award Formalities, Arbitral Institutions, Article IV NYC, UNCITRAL Model Law, Institutional rules
{"title":"Electronic Arbitral Awards: Yea or Nay? A Glimpse Inside the Minds of Arbitral Institutions","authors":"Kevin Ongenae","doi":"10.54648/joia2023013","DOIUrl":"https://doi.org/10.54648/joia2023013","url":null,"abstract":"More and more publications address the validity of electronic arbitral awards. The underlying assumptions of such articles are often that (1) the arbitration community does not make use of electronic awards; and (2) that the reason for that is that there may be legal validity issues due to the formal requirements that apply to them. This article verifies whether that is really the case, and does so on the basis of questionnaire data obtained from leading arbitration institutions during Spring and Summer 2022. The data from the questionnaire pertains to (1) how exactly arbitral institutions render arbitral awards in practice; and (2) how they perceive electronic awards (in general and with respect to their desirability and legality). This article finds that, indeed, institutions rarely make use of electronic awards. Their reasons for doing so are both legal and practical in nature.\u0000Technology, Digitalization, Procedure, Arbitral Awards, Electronic Awards, Award Formalities, Arbitral Institutions, Article IV NYC, UNCITRAL Model Law, Institutional rules","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48523352","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article postulates that there will be two stages for the implementation ofArtificial Intelligence (AI). In the short term, the first stage will lead to a complementary relationship between predictive machines and humans. After the cost of prediction decreases, new players come to the arbitration arena and the flow of capital to finance AI’s use in international arbitration is widely available, we will see the second stage’s outset where predictive machines will assist in more sophisticated tasks. AI may assist counsel in crafting arguments, and arbitrators in comparing evidence submitted, and finding conflicting fact patterns in the evidence. AI may even decide some aspects of a case. This requires a new division of labour. Lawyers will have to adapt and learn to delegate to such machines while being aware of their limitations. In response, new arbitration specialties will inevitably emerge. However, flesh-and-blood arbitrators will not be eliminated. While predictive machines may be able to decide certain aspects of arbitrations quickly and at a lower cost, the amount of data, the lack of repetitive patterns, inconsistencies, and parties’ agreement that the award shall remain confidential and state the reasons upon which it is based may hinder their capabilities. The current legal framework seems to require drastic changes to make way for AI. artificial intelligence, machine learning, international arbitration, expert systems, rule systems, the future of arbitration, division of work, intelligence
{"title":"The Future of International Arbitration in the Age of Artificial Intelligence","authors":"Orlando Federico Cabrera Colorado","doi":"10.54648/joia2023014","DOIUrl":"https://doi.org/10.54648/joia2023014","url":null,"abstract":"This article postulates that there will be two stages for the implementation ofArtificial Intelligence (AI). In the short term, the first stage will lead to a complementary relationship between predictive machines and humans. After the cost of prediction decreases, new players come to the arbitration arena and the flow of capital to finance AI’s use in international arbitration is widely available, we will see the second stage’s outset where predictive machines will assist in more sophisticated tasks. AI may assist counsel in crafting arguments, and arbitrators in comparing evidence submitted, and finding conflicting fact patterns in the evidence. AI may even decide some aspects of a case. This requires a new division of labour. Lawyers will have to adapt and learn to delegate to such machines while being aware of their limitations. In response, new arbitration specialties will inevitably emerge. However, flesh-and-blood arbitrators will not be eliminated. While predictive machines may be able to decide certain aspects of arbitrations quickly and at a lower cost, the amount of data, the lack of repetitive patterns, inconsistencies, and parties’ agreement that the award shall remain confidential and state the reasons upon which it is based may hinder their capabilities. The current legal framework seems to require drastic changes to make way for AI.\u0000artificial intelligence, machine learning, international arbitration, expert systems, rule systems, the future of arbitration, division of work, intelligence","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45064262","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the new wave of international investment treaties, investor protections are under scrutiny as states seek to ‘restore’ their right to regulate. The umbrella clause is one investor protection under reconsideration. The perception, held by some, is that the umbrella clause permits an ‘unjustified intrusion’ into a state’s right to regulate within its territory. For that reason, the clause is increasingly being omitted from modern-day treaties. This article undertakes a detailed analysis of the umbrella clause and its divergent construction by investment treaty tribunals. It focuses on four particular complexities associated with the umbrella clause that have confronted tribunals to date. In conducting this analysis, the author seeks to demonstrate that, properly construed, the umbrella clause does not have far-reaching ramifications or interfere with a state’s right to regulate. It has an important place in the new wave of international investment treaties but should be carefully drafted. A suggested formulation, which has in mind the four complexities discussed, is offered up. Umbrella clause, obligations observance clause, observance of undertakings clause, international investment agreements, bilateral investment treaties, next generation of BITs, investor protections, state’s right to regulate, privity of obligation, investment treaty arbitration
{"title":"What Place Does an Umbrella Clause Have in the New Generation of Bilateral Investment Treaties?","authors":"L. Carroll","doi":"10.54648/joia2023007","DOIUrl":"https://doi.org/10.54648/joia2023007","url":null,"abstract":"In the new wave of international investment treaties, investor protections are under scrutiny as states seek to ‘restore’ their right to regulate. The umbrella clause is one investor protection under reconsideration. The perception, held by some, is that the umbrella clause permits an ‘unjustified intrusion’ into a state’s right to regulate within its territory. For that reason, the clause is increasingly being omitted from modern-day treaties. This article undertakes a detailed analysis of the umbrella clause and its divergent construction by investment treaty tribunals. It focuses on four particular complexities associated with the umbrella clause that have confronted tribunals to date. In conducting this analysis, the author seeks to demonstrate that, properly construed, the umbrella clause does not have far-reaching ramifications or interfere with a state’s right to regulate. It has an important place in the new wave of international investment treaties but should be carefully drafted. A suggested formulation, which has in mind the four complexities discussed, is offered up.\u0000Umbrella clause, obligations observance clause, observance of undertakings clause, international investment agreements, bilateral investment treaties, next generation of BITs, investor protections, state’s right to regulate, privity of obligation, investment treaty arbitration","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42642214","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Investor-state dispute settlement (ISDS) by arbitration under bilateral investment treaties (BITs) frequently entails the application of international law extrinsic to the BIT itself, either as a principle of interpretation or by importation to the BIT of external rules as a matter of construction. Since the Second World War, a huge domain of law has been developed by international tribunals under human rights treaties. These treaties are international law instruments of equal status to any BIT. However, when claimants have brought ISDS claims relating to investments in television and radio broadcasting, human rights law, in particular the right of freedom of expression, has often been ignored or dismissed by arbitral tribunals. Yet a jurisprudence constante in human rights tribunals clearly provides that there is a presumption in favour of freedom to broadcast, a presumption potentially material to the merits of such disputes. The conventional protections provided to investors under BITs require tribunals to apply human rights law, with the result that the presumption of freedom to broadcast throws a burden on states to justify the withholding of necessary permissions. As political interference with free media, often foreign-owned, continues to be reported, the societal responsibility of tribunals to take such rights seriously becomes pressing. ISDS, investment treaty, arbitration, broadcasting licence, freedom of speech, freedom of expression, censorship, political interference
{"title":"The Human Right of Freedom of Expression in Investor-State Arbitration","authors":"Thomas Dillon","doi":"10.54648/joia2023009","DOIUrl":"https://doi.org/10.54648/joia2023009","url":null,"abstract":"Investor-state dispute settlement (ISDS) by arbitration under bilateral investment treaties (BITs) frequently entails the application of international law extrinsic to the BIT itself, either as a principle of interpretation or by importation to the BIT of external rules as a matter of construction. Since the Second World War, a huge domain of law has been developed by international tribunals under human rights treaties. These treaties are international law instruments of equal status to any BIT. However, when claimants have brought ISDS claims relating to investments in television and radio broadcasting, human rights law, in particular the right of freedom of expression, has often been ignored or dismissed by arbitral tribunals. Yet a jurisprudence constante in human rights tribunals clearly provides that there is a presumption in favour of freedom to broadcast, a presumption potentially material to the merits of such disputes. The conventional protections provided to investors under BITs require tribunals to apply human rights law, with the result that the presumption of freedom to broadcast throws a burden on states to justify the withholding of necessary permissions. As political interference with free media, often foreign-owned, continues to be reported, the societal responsibility of tribunals to take such rights seriously becomes pressing.\u0000ISDS, investment treaty, arbitration, broadcasting licence, freedom of speech, freedom of expression, censorship, political interference","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47751784","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Arbitral awards are easier to enforce across borders than court judgments, through the New York Convention, and this is one of arbitration’s key advantages compared to court litigation. In the European Union, however, this comparative advantage has been lost since the Brussels I Regulation Recast provides for the enforcement of judgments throughout the Union without the need for a local exequatur, whilst arbitral awards still require enforcement proceedings in each country. This article submits that arbitration must catch up and proposes a limited amendment to the recast Regulation, providing that arbitral awards issued in the European Union are capable of enforcement throughout the Union on the basis of a single exequatur in the jurisdiction of the seat. The proposed single exequatur at the seat will be optional; there will be no ‘double exequatur’ requirement. arbitration, award, enforcement, exequatur, recognition, single exequatur, Brussels I Regulation Recast, New York Convention, parallel proceedings
{"title":"Enforcement of Awards v. Enforcement of Judgments in the EU: Arbitration Must Catch Up","authors":"Yves Herinckx","doi":"10.54648/joia2023008","DOIUrl":"https://doi.org/10.54648/joia2023008","url":null,"abstract":"Arbitral awards are easier to enforce across borders than court judgments, through the New York Convention, and this is one of arbitration’s key advantages compared to court litigation. In the European Union, however, this comparative advantage has been lost since the Brussels I Regulation Recast provides for the enforcement of judgments throughout the Union without the need for a local exequatur, whilst arbitral awards still require enforcement proceedings in each country. This article submits that arbitration must catch up and proposes a limited amendment to the recast Regulation, providing that arbitral awards issued in the European Union are capable of enforcement throughout the Union on the basis of a single exequatur in the jurisdiction of the seat. The proposed single exequatur at the seat will be optional; there will be no ‘double exequatur’ requirement.\u0000arbitration, award, enforcement, exequatur, recognition, single exequatur, Brussels I Regulation Recast, New York Convention, parallel proceedings","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45810593","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Are non-contractual claims such as tort claims covered by standard arbitration clauses? Italian arbitration law contains a provision which seems to resolve this issue in favour of arbitration but which is interpreted restrictively by the Italian Court of Cassation. In other jurisdictions, the traditional approach was to find the answer by interpreting the wording of the clause. The modern view is to focus instead on the requirement of ‘factual equivalence’ between the non-contractual claim and the performance of the contract that contains the arbitration clause. Non-Contractual Claims, Principle of Wide Interpretation, In Favorem Validitatis, One-Stop Adjudication, Italian Court of Cassation, Italian Code of Civil Procedure, Wind Jet Judgment, General Arbitration Clauses, Fiona Trust, CDC Hydrogen Peroxide
{"title":"Contractual Arbitration Clauses and Non-Contractual Claims","authors":"K. Berger","doi":"10.54648/joia2023006","DOIUrl":"https://doi.org/10.54648/joia2023006","url":null,"abstract":"Are non-contractual claims such as tort claims covered by standard arbitration clauses? Italian arbitration law contains a provision which seems to resolve this issue in favour of arbitration but which is interpreted restrictively by the Italian Court of Cassation. In other jurisdictions, the traditional approach was to find the answer by interpreting the wording of the clause. The modern view is to focus instead on the requirement of ‘factual equivalence’ between the non-contractual claim and the performance of the contract that contains the arbitration clause.\u0000Non-Contractual Claims, Principle of Wide Interpretation, In Favorem Validitatis, One-Stop Adjudication, Italian Court of Cassation, Italian Code of Civil Procedure, Wind Jet Judgment, General Arbitration Clauses, Fiona Trust, CDC Hydrogen Peroxide","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46464029","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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