In this report we analysed publicly available cases decided by courts of Mainland China (‘PRC courts’) from 2001 to 2021 in which the court refused or rejected party’s application for recognition and enforcement of foreign (including Hong Kong, Macau, and Taiwan) arbitral awards, totalling thirty-seven cases. Here we provide factual summary for each case and conducted statistics with respect to their arbitration-related characteristics and PRC court’s ground of decision. With this report, one can see that PRC courts are extremely cautious in refusing or rejecting recognition and enforcement of foreign arbitral awards. Lack of valid arbitration agreement, and violation of arbitration agreement/arbitration rules/law of the seat, are the two major causes that led to the PRC Courts’ refusal of recognition and enforcement. However, one should note that non-compliance of national laws in Mainland China may undermine recognition and enforcement of foreign arbitral awards. PRC, Mainland China, foreign arbitral awards, recognition, enforcement, refusal, rejection, New York Convention, statistics
{"title":"An Empirical Study on Recognition and Enforcement of Foreign, Hong Kong, Macau, and Taiwan Arbitral Awards in Mainland China","authors":"Arthur Dong, Alex Yuan","doi":"10.54648/joia2022022","DOIUrl":"https://doi.org/10.54648/joia2022022","url":null,"abstract":"In this report we analysed publicly available cases decided by courts of Mainland China (‘PRC courts’) from 2001 to 2021 in which the court refused or rejected party’s application for recognition and enforcement of foreign (including Hong Kong, Macau, and Taiwan) arbitral awards, totalling thirty-seven cases. Here we provide factual summary for each case and conducted statistics with respect to their arbitration-related characteristics and PRC court’s ground of decision. With this report, one can see that PRC courts are extremely cautious in refusing or rejecting recognition and enforcement of foreign arbitral awards. Lack of valid arbitration agreement, and violation of arbitration agreement/arbitration rules/law of the seat, are the two major causes that led to the PRC Courts’ refusal of recognition and enforcement. However, one should note that non-compliance of national laws in Mainland China may undermine recognition and enforcement of foreign arbitral awards.\u0000PRC, Mainland China, foreign arbitral awards, recognition, enforcement, refusal, rejection, New York Convention, statistics","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42410137","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 analyses a qualitative sample of recent judicial decisions from Argentina, Colombia, Costa Rica, Chile, the Dominican Republic, Mexico and Peru. Almost all decisions in the sample show ordinary courts’ deference towards arbitration. As long as the courts operate within the framework established by the UNCITRAL Model Law or the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, arbitral awards enjoy a high level of autonomy and protection against unjustified attacks. This allows for conclusion that Latin America isn’t ‘Going South’ on its path into global arbitration realm. At the same time, in almost all jurisdictions included in the sample, Constitutional courts and Tribunals and constitutional actions for protection of fundamental rights play an extremely – indeed excessively – relevant role. Admittedly, these constitutional actions have been mainly unsuccessful and have not led to amendments of arbitral awards. Nonetheless, its sole availability generates legal uncertainty and undermines the reliability of arbitration as a mechanism of dispute resolution. It seems to be the last hurdle that Latin American countries will have to overcome before they are considered safe and appealing seats for international arbitration. Arbitration, Latin America, setting aside, recognition and enforcement, amparo, constitutionalization of arbitration
{"title":"Latin America Isn’t ‘Going South’: A Qualitative Sampling Analysis","authors":"E. Mereminskaya","doi":"10.54648/joia2022020","DOIUrl":"https://doi.org/10.54648/joia2022020","url":null,"abstract":"This article analyses a qualitative sample of recent judicial decisions from Argentina, Colombia, Costa Rica, Chile, the Dominican Republic, Mexico and Peru. Almost all decisions in the sample show ordinary courts’ deference towards arbitration. As long as the courts operate within the framework established by the UNCITRAL Model Law or the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, arbitral awards enjoy a high level of autonomy and protection against unjustified attacks. This allows for conclusion that Latin America isn’t ‘Going South’ on its path into global arbitration realm.\u0000At the same time, in almost all jurisdictions included in the sample, Constitutional courts and Tribunals and constitutional actions for protection of fundamental rights play an extremely – indeed excessively – relevant role. Admittedly, these constitutional actions have been mainly unsuccessful and have not led to amendments of arbitral awards. Nonetheless, its sole availability generates legal uncertainty and undermines the reliability of arbitration as a mechanism of dispute resolution. It seems to be the last hurdle that Latin American countries will have to overcome before they are considered safe and appealing seats for international arbitration.\u0000Arbitration, Latin America, setting aside, recognition and enforcement, amparo, constitutionalization of arbitration","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44621646","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 this article the authors cover the problem of expressly established non-recognition of dissenting opinions (separate opinions) in the Court of Arbitration for Sport (CAS) being uncommon for arbitration institutes. In particular, the authors analyse approaches to dissenting opinions in various national legal systems and arbitration institutes (as well as other dispute resolution bodies) which mainly allow dissenting opinions (as described below). The main focus and goal of this article is to explore possible considerations that might have led to non-recognition of dissenting opinions in CAS proceedings and whether this is common in arbitration and international justice. Having researched this question, the authors conclude that the origins of such a substantive influence on the existing regulation could be: (1) the CAS’s precedent role; and (2) the influence of Swiss law as lex arbitri. The authors also conduct substantial analysis of existing views, asking whether the lack of dissenting opinion is a positive or a negative feature and conclude that the dissenting opinion is still very controversial regarding its impact. The chosen topic is important because the approach of various dispute resolution bodies seems not to be unanimous and there is no global tendency in this respect. The topic is especially timely, considering the recent decision of a Frankfurt Court of Appeal which refused to enforce an International Chamber of Commerce (ICC) award due (among other reasons) to the existing dissent which in the opinion of the court violated public policy. dissenting opinions, separate opinions, concurring opinions, arbitral awards, the Court of Arbitration for Sport (CAS), sports arbitration, international arbitration, decision, award, alternative dispute resolution, arbitrators, deliberation, joint or individual opinions
在这篇文章中，作者涵盖了在体育仲裁法院（CAS）明确规定不承认不同意见（单独意见）的问题，这在仲裁机构中是罕见的。特别地，作者分析了各国法律体系和仲裁机构（以及其他争端解决机构）中主要允许异议的异议处理方法（如下所述）。本文的主要重点和目标是探讨可能导致CAS诉讼中不承认异议的考虑因素，以及这是否是在仲裁和国际司法中很常见。通过对这一问题的研究，作者得出结论，这种对现行法规的实质性影响的根源可能是：（1）CAS的先例作用；以及（2）瑞士法律作为仲裁法的影响。作者还对现有观点进行了实质性分析，询问缺乏反对意见是积极的还是消极的，并得出结论，反对意见在其影响方面仍然非常有争议。所选择的主题很重要，因为各种争端解决机构的做法似乎并不一致，在这方面也没有全球趋势。考虑到法兰克福上诉法院（Frankfurt Court of Appeal）最近的一项裁决，该裁决拒绝执行国际商会（ICC）的裁决，因为（除其他原因外）法院认为现有的异议违反了公共政策，体育仲裁、国际仲裁、决定、裁决、替代争议解决、仲裁员、审议、联合或个人意见
{"title":"Non-recognition of Dissenting Opinions in CAS as a Controversial and Unresolved Matter","authors":"A. Goryacheva, N. Kisliakova","doi":"10.54648/joia2022010","DOIUrl":"https://doi.org/10.54648/joia2022010","url":null,"abstract":"In this article the authors cover the problem of expressly established non-recognition of dissenting opinions (separate opinions) in the Court of Arbitration for Sport (CAS) being uncommon for arbitration institutes. In particular, the authors analyse approaches to dissenting opinions in various national legal systems and arbitration institutes (as well as other dispute resolution bodies) which mainly allow dissenting opinions (as described below).\u0000The main focus and goal of this article is to explore possible considerations that might have led to non-recognition of dissenting opinions in CAS proceedings and whether this is common in arbitration and international justice. Having researched this question, the authors conclude that the origins of such a substantive influence on the existing regulation could be: (1) the CAS’s precedent role; and (2) the influence of Swiss law as lex arbitri. The authors also conduct substantial analysis of existing views, asking whether the lack of dissenting opinion is a positive or a negative feature and conclude that the dissenting opinion is still very controversial regarding its impact.\u0000The chosen topic is important because the approach of various dispute resolution bodies seems not to be unanimous and there is no global tendency in this respect. The topic is especially timely, considering the recent decision of a Frankfurt Court of Appeal which refused to enforce an International Chamber of Commerce (ICC) award due (among other reasons) to the existing dissent which in the opinion of the court violated public policy.\u0000dissenting opinions, separate opinions, concurring opinions, arbitral awards, the Court of Arbitration for Sport (CAS), sports arbitration, international arbitration, decision, award, alternative dispute resolution, arbitrators, deliberation, joint or individual opinions","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42939739","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}
Although Terms of Reference (‘ToR’) have been a longstanding and distinctive feature of the International Chamber of Commerce (ICC) Rules of Arbitration for almost a century, their continuing relevance and necessity warrant scrutiny, considering the radical evolution of international arbitration in recent years. The introduction of sophisticated procedural tools and frameworks, together with most states and courts exhibiting ‘pro-arbitration’ attitudes, lead one to question whether ToR remain a necessary procedural tool. In answering this question, the article first assesses the historical context in which the ToR were introduced to serve as a submission agreement and questions whether ToR continue to serve their historical role. The article thereafter closely scrutinizes the ToR’s current features and functions and considers whether the ToR have outlived their usefulness by analysing whether they are needed to fulfil those functions. The fact that ToR are no longer required as necessary evidence of consent and/ or to assist in the enforceability of an award, together with the advent of new procedural tools and practices, have rendered the ToR all but superfluous in today’s context. The article proposes that the ToR’s mandatory nature be dispensed with in the interest of efficiency, making way for dynamic procedural alternatives. International Arbitration, Terms of Reference, ICC, Arbitration Procedure
{"title":"W(h)ither Institutional Terms of Reference?","authors":"V. Sc","doi":"10.54648/joia2022007","DOIUrl":"https://doi.org/10.54648/joia2022007","url":null,"abstract":"Although Terms of Reference (‘ToR’) have been a longstanding and distinctive feature of the International Chamber of Commerce (ICC) Rules of Arbitration for almost a century, their continuing relevance and necessity warrant scrutiny, considering the radical evolution of international arbitration in recent years. The introduction of sophisticated procedural tools and frameworks, together with most states and courts exhibiting ‘pro-arbitration’ attitudes, lead one to question whether ToR remain a necessary procedural tool. In answering this question, the article first assesses the historical context in which the ToR were introduced to serve as a submission agreement and questions whether ToR continue to serve their historical role. The article thereafter closely scrutinizes the ToR’s current features and functions and considers whether the ToR have outlived their usefulness by analysing whether they are needed to fulfil those functions. The fact that ToR are no longer required as necessary evidence of consent and/ or to assist in the enforceability of an award, together with the advent of new procedural tools and practices, have rendered the ToR all but superfluous in today’s context. The article proposes that the ToR’s mandatory nature be dispensed with in the interest of efficiency, making way for dynamic procedural alternatives.\u0000International Arbitration, Terms of Reference, ICC, Arbitration Procedure","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42179725","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 General Dynamics v. Libya, the UK Supreme Court was asked to decide whether the only means for serving on a sovereign state an order enforcing an international arbitral award under the New York Convention was via diplomatic channels. The Supreme Court decided, by a bare majority, that service via diplomatic channels was mandatory. This case note reviews and analyses the Supreme Court’s decision. State Immunity, Service, Proceedings, Sovereign State, Enforcement Order, Hard Cases, UK Supreme Court
{"title":"A Case Note on the UK Supreme Court’s Recent Decision in General Dynamics v. Libya: Hard Cases (Don’t Always) Make Bad Law","authors":"Michael Howe","doi":"10.54648/joia2022012","DOIUrl":"https://doi.org/10.54648/joia2022012","url":null,"abstract":"In General Dynamics v. Libya, the UK Supreme Court was asked to decide whether the only means for serving on a sovereign state an order enforcing an international arbitral award under the New York Convention was via diplomatic channels. The Supreme Court decided, by a bare majority, that service via diplomatic channels was mandatory. This case note reviews and analyses the Supreme Court’s decision.\u0000State Immunity, Service, Proceedings, Sovereign State, Enforcement Order, Hard Cases, UK Supreme Court","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44572631","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}
L. Greenwood, Damien Charlotin, Leonor Díaz-Córdova
‘Noise’ is the unjustified and unwanted variance in a set of judgments over comparable issues. Together with bias, Noise is a driver of error in decision-making. As argued by the authors of the bestseller ‘Noise: A Flaw in Human Judgment’, every set of judgments or decisions (in legal proceedings or otherwise) evidence statistical ‘Noise’, and more of it than is commonly believed. Such variance has corrosive, if often concealed, consequences in terms of fairness, efficiency and legitimacy. In this article we demonstrate that there is likely to be substantial Noise in international arbitration proceedings, which is driven by features inherent to the arbitral process (though further features also help mitigate it). We present our Noise Audit and identify examples of Noise in publicly-available awards. We conclude with a number of recommendations to minimize Noise, in order to forge a pathway towards greater consistency in international arbitration. International Arbitration, Consistency, Noise, Variance, Psychology, Dispute- Resolution, Empirical, Interest Rates, Country Risk
{"title":"Noises Off: Towards Greater Consistency in International Arbitration Awards","authors":"L. Greenwood, Damien Charlotin, Leonor Díaz-Córdova","doi":"10.54648/joia2022009","DOIUrl":"https://doi.org/10.54648/joia2022009","url":null,"abstract":"‘Noise’ is the unjustified and unwanted variance in a set of judgments over comparable issues. Together with bias, Noise is a driver of error in decision-making. As argued by the authors of the bestseller ‘Noise: A Flaw in Human Judgment’, every set of judgments or decisions (in legal proceedings or otherwise) evidence statistical ‘Noise’, and more of it than is commonly believed. Such variance has corrosive, if often concealed, consequences in terms of fairness, efficiency and legitimacy. In this article we demonstrate that there is likely to be substantial Noise in international arbitration proceedings, which is driven by features inherent to the arbitral process (though further features also help mitigate it). We present our Noise Audit and identify examples of Noise in publicly-available awards. We conclude with a number of recommendations to minimize Noise, in order to forge a pathway towards greater consistency in international arbitration.\u0000International Arbitration, Consistency, Noise, Variance, Psychology, Dispute- Resolution, Empirical, Interest Rates, Country Risk","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45211841","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 Fulham Football Club (1987) Ltd v. Richards and The Football Association Premier League Ltd, the Court of Appeal of England and Wales settled a controversial matter, finding that unfair prejudice petitions under section 994 of the English Arbitration Act 1996 could be referred to arbitration. At the time the judgment was handed down, it was met with some scepticism with commentators arguing that it would lead to inconsistency and confusion in the arbitrability of disputes and the remedies that can be awarded in arbitration. In the years that followed, the Court of Appeal’s judgment has been relied on in the development of the arbitrability of corporate disputes in England and Wales and several other common law jurisdictions. On the occasion of the ten-year anniversary of the Fulham decision, this article explores whether the confusion and inconsistency that commentators predicted have, in fact, materialized. Arbitrability, Arbitration Act 1996, Corporate disputes, Fulham Football Club v. Richards, Remedies, Section 994, Unfair prejudice
{"title":"The Arbitrability of Corporate Disputes After Fulham Football Club V. Richards: A Decade On","authors":"B. Kasolowsky, Roopa Mathews","doi":"10.54648/joia2022011","DOIUrl":"https://doi.org/10.54648/joia2022011","url":null,"abstract":"In Fulham Football Club (1987) Ltd v. Richards and The Football Association Premier League Ltd, the Court of Appeal of England and Wales settled a controversial matter, finding that unfair prejudice petitions under section 994 of the English Arbitration Act 1996 could be referred to arbitration. At the time the judgment was handed down, it was met with some scepticism with commentators arguing that it would lead to inconsistency and confusion in the arbitrability of disputes and the remedies that can be awarded in arbitration. In the years that followed, the Court of Appeal’s judgment has been relied on in the development of the arbitrability of corporate disputes in England and Wales and several other common law jurisdictions. On the occasion of the ten-year anniversary of the Fulham decision, this article explores whether the confusion and inconsistency that commentators predicted have, in fact, materialized.\u0000Arbitrability, Arbitration Act 1996, Corporate disputes, Fulham Football Club v. Richards, Remedies, Section 994, Unfair prejudice","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44484697","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}
Both parties and courts routinely invoke the term ‘prejudice’ in applications to set aside an arbitral award or refuse its enforcement. This suggests that the use of the term is more than just a figure of speech. It is generally understood that prejudice, in the sense of impact or effect on the outcome of the arbitration, is relevant for procedural challenges but not jurisdictional challenges. However, questions remain as to whether prejudice is legally relevant for challenges that are neither strictly procedural or jurisdictional in nature, whether prejudice is relevant as a factor for consideration or as a legal requirement when challenging an award, and the meaning of prejudice. This article shows that the usage of the term ‘prejudice’ in case law is inconsistent and far from straightforward. This article attempts to elucidate a clear and structured way of understanding the role prejudice plays for each ground for challenging an award under the Model Law. Model Law, Article 34, Article 36, Setting Aside, Refusing Enforcement, Procedural Challenge, Jurisdictional Challenge, Residual Discretion, Materiality, Prejudice, Causative Link
{"title":"A Requirement, A Factor, or A Figure of Speech? Role of Prejudice When Challenging Awards Under the Model Law","authors":"Darius Chan, Zhi Jia Koh","doi":"10.54648/joia2022008","DOIUrl":"https://doi.org/10.54648/joia2022008","url":null,"abstract":"Both parties and courts routinely invoke the term ‘prejudice’ in applications to set aside an arbitral award or refuse its enforcement. This suggests that the use of the term is more than just a figure of speech. It is generally understood that prejudice, in the sense of impact or effect on the outcome of the arbitration, is relevant for procedural challenges but not jurisdictional challenges. However, questions remain as to whether prejudice is legally relevant for challenges that are neither strictly procedural or jurisdictional in nature, whether prejudice is relevant as a factor for consideration or as a legal requirement when challenging an award, and the meaning of prejudice. This article shows that the usage of the term ‘prejudice’ in case law is inconsistent and far from straightforward. This article attempts to elucidate a clear and structured way of understanding the role prejudice plays for each ground for challenging an award under the Model Law.\u0000Model Law, Article 34, Article 36, Setting Aside, Refusing Enforcement, Procedural Challenge, Jurisdictional Challenge, Residual Discretion, Materiality, Prejudice, Causative Link","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48917689","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}
Concerns have been expressed that commercial common law is not developing as it should due to disputes being resolved by confidential international commercial arbitration where the majority of awards are not published, and the resultant lack of precedents. This has contributed to questions of the legitimacy of international commercial arbitration and whether the rule of law is being undermined by the non-publication of awards or by the diversion of disputes to arbitration rather than litigation. This article examines the meaning of precedents in this context and the approximate number being ‘lost’ to international commercial arbitration compared to those made in authoritative common law superior courts of record. It suggests that the number of awards of precedential value (APV) is small compared to the volume of commercial judgments of those courts, and that the perceived loss of precedents does not support either publication of awards nor determination of disputes by courts rather than by tribunals. Precedent might instead be enhanced by a wider right of appeal from awards and by publication of the appeal decisions. precedent, precedential value, award publication, arbitration appeals, law development, settlement pressures, litigation vs arbitration, court reporting, Lindley principles, rule of law
{"title":"The Lost Precedents of Arbitration","authors":"C. Ford","doi":"10.54648/joia2022002","DOIUrl":"https://doi.org/10.54648/joia2022002","url":null,"abstract":"Concerns have been expressed that commercial common law is not developing as it should due to disputes being resolved by confidential international commercial arbitration where the majority of awards are not published, and the resultant lack of precedents. This has contributed to questions of the legitimacy of international commercial arbitration and whether the rule of law is being undermined by the non-publication of awards or by the diversion of disputes to arbitration rather than litigation. This article examines the meaning of precedents in this context and the approximate number being ‘lost’ to international commercial arbitration compared to those made in authoritative common law superior courts of record. It suggests that the number of awards of precedential value (APV) is small compared to the volume of commercial judgments of those courts, and that the perceived loss of precedents does not support either publication of awards nor determination of disputes by courts rather than by tribunals. Precedent might instead be enhanced by a wider right of appeal from awards and by publication of the appeal decisions.\u0000precedent, precedential value, award publication, arbitration appeals, law development, settlement pressures, litigation vs arbitration, court reporting, Lindley principles, rule of law","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47783664","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}
Climate change is the greatest global challenge that humankind has ever faced. It has changed the way in which communities, governments and businesses interact with each other, how they contract one with another and what legal disputes they face. National and international legal frameworks currently in place rarely provide the necessary mechanisms to resolve new kinds of disputes that have emerged and as a result, important gaps remain. International commercial arbitration is uniquely placed to respond to the transboundary nature of climate change. Its inherent flexibility, innovativeness, ability to deal with complex, cross-border issues and the possibility to choose a neutral adjudicator according to his/her expertise give commercial arbitration an important advantage over court litigation. However, some of its characteristics that are seen as welcome and desired in different contexts create important challenges for achieving climate justice. Therefore, innovation in this area will be necessary if commercial arbitration is to become an attractive option for resolving climate change-related disputes between businesses. The arbitration community should try to find constructive ways in which commercial arbitration can innovate itself so that it can complement other methods of dispute resolution traditionally used for climate change disputes. climate change, climate justice, ESG, international commercial arbitration, private finance, Paris Agreement, arbitration clause, expertise, transparency, Campaign for Greener Arbitrations, Chancery Lane Project, COP 26
{"title":"On Route to Climate Justice: The Greta Effect on International Commercial Arbitration","authors":"Lucia Bíziková","doi":"10.54648/joia2022004","DOIUrl":"https://doi.org/10.54648/joia2022004","url":null,"abstract":"Climate change is the greatest global challenge that humankind has ever faced. It has changed the way in which communities, governments and businesses interact with each other, how they contract one with another and what legal disputes they face. National and international legal frameworks currently in place rarely provide the necessary mechanisms to resolve new kinds of disputes that have emerged and as a result, important gaps remain.\u0000International commercial arbitration is uniquely placed to respond to the transboundary nature of climate change. Its inherent flexibility, innovativeness, ability to deal with complex, cross-border issues and the possibility to choose a neutral adjudicator according to his/her expertise give commercial arbitration an important advantage over court litigation. However, some of its characteristics that are seen as welcome and desired in different contexts create important challenges for achieving climate justice. Therefore, innovation in this area will be necessary if commercial arbitration is to become an attractive option for resolving climate change-related disputes between businesses. The arbitration community should try to find constructive ways in which commercial arbitration can innovate itself so that it can complement other methods of dispute resolution traditionally used for climate change disputes.\u0000climate change, climate justice, ESG, international commercial arbitration, private finance, Paris Agreement, arbitration clause, expertise, transparency, Campaign for Greener Arbitrations, Chancery Lane Project, COP 26","PeriodicalId":43527,"journal":{"name":"Journal of International Arbitration","volume":" ","pages":""},"PeriodicalIF":0.2,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44722876","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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