Pub Date : 2020-09-10DOI: 10.1093/law/9780198796190.003.0003
A. Mills
This chapter examines the concept and source of arbitral jurisdiction. In the context of arbitration, the term ‘jurisdiction’ typically refers to the ‘power’ or ‘authority’ of the arbitral tribunal to decide a dispute. A decision about whether a tribunal has jurisdiction will frequently be made by the tribunal itself, but that decision is not and cannot be a source of its jurisdiction, and cannot be a definitive determination of that jurisdiction, because the authority of that decision depends on the very question under review. A degree of deference may be given to the tribunal’s determination of these questions by national courts, but self-evidently a tribunal may not confer authority on itself. Thus, the ‘power’ of a tribunal comes more indirectly from two sources. First, the cooperation of national courts, which may readily recognize and enforce arbitral awards and may also act in support of arbitration in various other ways. Second, the potential reputational consequences of non-compliance with an arbitral award, which may lead a party to comply with it voluntarily. The legal framework for arbitration applied by most national courts is set out in the New York Convention 1958, and this remains a key basic source of the standards which are applied to determine when an arbitral tribunal is considered to have jurisdiction.
{"title":"Arbitral Jurisdiction","authors":"A. Mills","doi":"10.1093/law/9780198796190.003.0003","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0003","url":null,"abstract":"This chapter examines the concept and source of arbitral jurisdiction. In\u0000 the context of arbitration, the term ‘jurisdiction’ typically refers to\u0000 the ‘power’ or ‘authority’ of the arbitral tribunal to decide a dispute.\u0000 A decision about whether a tribunal has jurisdiction will frequently be\u0000 made by the tribunal itself, but that decision is not and cannot be a\u0000 source of its jurisdiction, and cannot be a definitive determination of\u0000 that jurisdiction, because the authority of that decision depends on the\u0000 very question under review. A degree of deference may be given to the\u0000 tribunal’s determination of these questions by national courts, but\u0000 self-evidently a tribunal may not confer authority on itself. Thus, the\u0000 ‘power’ of a tribunal comes more indirectly from two sources. First, the\u0000 cooperation of national courts, which may readily recognize and enforce\u0000 arbitral awards and may also act in support of arbitration in various\u0000 other ways. Second, the potential reputational consequences of\u0000 non-compliance with an arbitral award, which may lead a party to comply\u0000 with it voluntarily. The legal framework for arbitration applied by most\u0000 national courts is set out in the New York Convention 1958, and this\u0000 remains a key basic source of the standards which are applied to\u0000 determine when an arbitral tribunal is considered to have\u0000 jurisdiction.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121412391","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}
Pub Date : 2020-09-10DOI: 10.1093/law/9780198796190.003.0032
Y. Dezalay, B. Garth
This chapter traces the development of international commercial arbitration, which is often presented as a response to the demand for law and dispute resolution created naturally by an increase in transnational commerce and investment. Indeed, the International Chamber of Commerce (ICC) in Paris was relatively marginal from its establishment in 1923 until the increase in global trade and commerce that came in the 1970s and 1980s. The demand naturally created the supply. Based on the recognition that this market was not inevitable, it has been argued that the rise of international commercial arbitration depended on institutional entrepreneurs around the ICC. The chapter then looks at how the relatively marginal group around the ICC that Sgard studies gained credibility and acceptance from both multinational enterprises and developing countries.
{"title":"International Commercial Arbitration","authors":"Y. Dezalay, B. Garth","doi":"10.1093/law/9780198796190.003.0032","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0032","url":null,"abstract":"This chapter traces the development of international commercial\u0000 arbitration, which is often presented as a response to the demand for\u0000 law and dispute resolution created naturally by an increase in\u0000 transnational commerce and investment. Indeed, the International Chamber\u0000 of Commerce (ICC) in Paris was relatively marginal from its\u0000 establishment in 1923 until the increase in global trade and commerce\u0000 that came in the 1970s and 1980s. The demand naturally created the\u0000 supply. Based on the recognition that this market was not inevitable, it\u0000 has been argued that the rise of international commercial arbitration\u0000 depended on institutional entrepreneurs around the ICC. The chapter then\u0000 looks at how the relatively marginal group around the ICC that Sgard\u0000 studies gained credibility and acceptance from both multinational\u0000 enterprises and developing countries.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133310286","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}
Pub Date : 2020-09-10DOI: 10.1093/law/9780198796190.003.0026
A. Y. Vastardis
This chapter challenges investment treaty arbitration at its core by questioning the validity of insistence on special routes for access to justice reserved to remediate the grievances of a class of privileged investors, which can be referred to as ‘justice bubbles’. Despite the potential of the ongoing reform initiatives to genuinely improve the existing investment treaty arbitration model, salvaging and strengthening these justice bubbles that serve the needs of the privileged few sustains and even makes permanent the prioritization of institutions of justice for foreign investors over the improvement of local institutions that could provide justice for members across society, including foreign investors. However, no institutional process used or proposed for settling international investment law disputes is perfect, and each process is ‘imperfect in different ways given the dynamics of participation within them’. Thus, the challenge in this chapter is directed towards the singling out of high-value investment disputes as deserving special treatment above and beyond any institutional options available to any other private party aggrieved by governmental abuse. The chapter then argues that the establishment of a permanent investment court is a short-sighted solution to deficiencies in local access to justice, which is likely to undermine domestic legal developments.
{"title":"Investment Treaty Arbitration","authors":"A. Y. Vastardis","doi":"10.1093/law/9780198796190.003.0026","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0026","url":null,"abstract":"This chapter challenges investment treaty arbitration at its core by\u0000 questioning the validity of insistence on special routes for access to\u0000 justice reserved to remediate the grievances of a class of privileged\u0000 investors, which can be referred to as ‘justice bubbles’. Despite the\u0000 potential of the ongoing reform initiatives to genuinely improve the\u0000 existing investment treaty arbitration model, salvaging and\u0000 strengthening these justice bubbles that serve the needs of the\u0000 privileged few sustains and even makes permanent the prioritization of\u0000 institutions of justice for foreign investors over the improvement of\u0000 local institutions that could provide justice for members across\u0000 society, including foreign investors. However, no institutional process\u0000 used or proposed for settling international investment law disputes is\u0000 perfect, and each process is ‘imperfect in different ways given the\u0000 dynamics of participation within them’. Thus, the challenge in this\u0000 chapter is directed towards the singling out of high-value investment\u0000 disputes as deserving special treatment above and beyond any\u0000 institutional options available to any other private party aggrieved by\u0000 governmental abuse. The chapter then argues that the establishment of a\u0000 permanent investment court is a short-sighted solution to deficiencies\u0000 in local access to justice, which is likely to undermine domestic legal\u0000 developments.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126061249","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}
Pub Date : 2020-09-10DOI: 10.1093/law/9780198796190.003.0020
T. Morgandi
This chapter studies the role of arbitration for offshore resources in disputed maritime areas. It is an observable fact that disputes over maritime boundaries are mostly caused by competing desires of states to exploit offshore natural resources, in particular oil and gas deposits. Indeed, it is well known that the law on maritime boundaries was developed precisely in order to allocate rights over offshore natural resources. However, it has also long been observed that the law on maritime boundary delimitation, as developed by international tribunals, ostensibly pays only scant regard to this underlying basis of the disputes at issue. Rather, the law purports to base itself on other principles. In particular, the unilateral activities of the parties are consistently rejected as being ‘relevant circumstances’ relevant to a boundary delimitation. However, if one looks at what tribunals do, instead of what they say they do, it seems that in fact the unilateral activities of the parties concerning the exploitation of offshore hydrocarbons play a rather larger role. Whenever tribunals have some discretion, they invariably choose a delimitation line that gives oil and gas deposits to those parties that have taken the initiative to drill them unilaterally, provided that this drilling has taken place at least within a plausible boundary of the state that issued the concession. Moreover, tribunals are extremely reluctant to draw boundaries over drilled deposits, thus avoiding making them shared as a result of the delimitation exercise.
{"title":"Arbitration and Offshore Resources in Disputed Maritime Areas","authors":"T. Morgandi","doi":"10.1093/law/9780198796190.003.0020","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0020","url":null,"abstract":"This chapter studies the role of arbitration for offshore resources in\u0000 disputed maritime areas. It is an observable fact that disputes over\u0000 maritime boundaries are mostly caused by competing desires of states to\u0000 exploit offshore natural resources, in particular oil and gas deposits.\u0000 Indeed, it is well known that the law on maritime boundaries was\u0000 developed precisely in order to allocate rights over offshore natural\u0000 resources. However, it has also long been observed that the law on\u0000 maritime boundary delimitation, as developed by international tribunals,\u0000 ostensibly pays only scant regard to this underlying basis of the\u0000 disputes at issue. Rather, the law purports to base itself on other\u0000 principles. In particular, the unilateral activities of the parties are\u0000 consistently rejected as being ‘relevant circumstances’ relevant to a\u0000 boundary delimitation. However, if one looks at what tribunals do,\u0000 instead of what they say they do, it seems that in fact the unilateral\u0000 activities of the parties concerning the exploitation of offshore\u0000 hydrocarbons play a rather larger role. Whenever tribunals have some\u0000 discretion, they invariably choose a delimitation line that gives oil\u0000 and gas deposits to those parties that have taken the initiative to\u0000 drill them unilaterally, provided that this drilling has taken place at\u0000 least within a plausible boundary of the state that issued the\u0000 concession. Moreover, tribunals are extremely reluctant to draw\u0000 boundaries over drilled deposits, thus avoiding making them shared as a\u0000 result of the delimitation exercise.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132006919","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}
Pub Date : 2020-09-10DOI: 10.1093/law/9780198796190.003.0001
T. Schultz, N. Ridi
This introductory chapter provides an overview of the arbitration literature. Arbitration literature has a long history. So far, however, no attempt has been made to examine it and its evolution systematically and with a quantitative approach. The lack of investigation of this research question is, in and by itself, surprising. Clearly, the literature plays a strong role in shaping the thinking and making of international arbitration law. Moreover, literature—and scientific literature in particular—is a privileged conduit for the various actors in the social field of international arbitration. The chapter then looks at scientometrics. This field was first defined as ‘the quantitative methods of the research on the development of science as an informational process’. On the scientometrics market, the citation is the main currency. The rationale is that citation counts are positively associated with subsequent impact. Thus, arbitration literature can be measured in two ways. First, one determines which works are the most cited, in absolute terms and over time, for two different time windows. These are the works that likely have had the most impact on the knowledge in and about arbitration, where this knowledge is taken as a single, common whole. Second, one looks at what the co-citation network can reveal about the make-up of the world of arbitration literature.
{"title":"Arbitration Literature","authors":"T. Schultz, N. Ridi","doi":"10.1093/law/9780198796190.003.0001","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0001","url":null,"abstract":"This introductory chapter provides an overview of the arbitration literature.\u0000 Arbitration literature has a long history. So far, however, no attempt has\u0000 been made to examine it and its evolution systematically and with a\u0000 quantitative approach. The lack of investigation of this research question\u0000 is, in and by itself, surprising. Clearly, the literature plays a strong\u0000 role in shaping the thinking and making of international arbitration law.\u0000 Moreover, literature—and scientific literature in particular—is a privileged\u0000 conduit for the various actors in the social field of international\u0000 arbitration. The chapter then looks at scientometrics. This field was\u0000 first defined as ‘the quantitative methods of the research on the\u0000 development of science as an informational process’. On the scientometrics\u0000 market, the citation is the main currency. The rationale is that citation\u0000 counts are positively associated with subsequent impact. Thus, arbitration\u0000 literature can be measured in two ways. First, one determines which works\u0000 are the most cited, in absolute terms and over time, for two different time\u0000 windows. These are the works that likely have had the most impact on the\u0000 knowledge in and about arbitration, where this knowledge is taken as a\u0000 single, common whole. Second, one looks at what the co-citation network can\u0000 reveal about the make-up of the world of arbitration literature.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133179449","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}
Pub Date : 2020-09-10DOI: 10.1093/LAW/9780198796190.003.0033
Taylor St. John
This chapter explores the creation of investor–state arbitration. There is no shortage of antecedents for investor–state arbitration. So why is it perceived as ‘dramatically different’ from what had gone before? In the second half of the twentieth century, consent to investor–state arbitration was provided prospectively (before disputes arose) and pursuant to generalized jurisdiction (for any treaty breach); this is profoundly different from previous practices. Two institutional developments were crucial for creating prospective, generalized consent. First, the ICSID Convention emerged. Second, provisions providing consent to investor–state arbitration were added to investment treaties. The chapter then focuses on these two developments. It reconstructs the choices that officials faced, their constraints, and the reasons why they made the choice for investor–state arbitration against other alternatives. To do so, it uses primary documents from five archives: the American, British, German, and Swiss national archives as well as the World Bank archives.
{"title":"The Creation of Investor–State Arbitration","authors":"Taylor St. John","doi":"10.1093/LAW/9780198796190.003.0033","DOIUrl":"https://doi.org/10.1093/LAW/9780198796190.003.0033","url":null,"abstract":"This chapter explores the creation of investor–state arbitration. There\u0000 is no shortage of antecedents for investor–state arbitration. So why is\u0000 it perceived as ‘dramatically different’ from what had gone before? In\u0000 the second half of the twentieth century, consent to investor–state\u0000 arbitration was provided prospectively (before disputes arose) and\u0000 pursuant to generalized jurisdiction (for any treaty breach); this is\u0000 profoundly different from previous practices. Two institutional\u0000 developments were crucial for creating prospective, generalized consent.\u0000 First, the ICSID Convention emerged. Second, provisions providing\u0000 consent to investor–state arbitration were added to investment treaties.\u0000 The chapter then focuses on these two developments. It reconstructs the\u0000 choices that officials faced, their constraints, and the reasons why\u0000 they made the choice for investor–state arbitration against other\u0000 alternatives. To do so, it uses primary documents from five archives:\u0000 the American, British, German, and Swiss national archives as well as\u0000 the World Bank archives.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121221510","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}
Pub Date : 2020-09-10DOI: 10.1093/law/9780198796190.003.0022
Hélène Ruiz Fabri, Edoardo Stoppioni
This chapter examines some of the methodological elements of feminist approaches to international law to rethink international arbitration. The central focus of a feminist prism appears to be whether international arbitration is subjugated by patriarchal domination structures, bias and injustice, thus mirroring and even reinforcing the idiosyncrasies of international law, especially international economic law. Probably, one could answer yes to all these questions, and this is essentially why the legitimacy of international arbitration is so much at stake. However, the absence of such a dispute settlement system would not necessarily lead to a better situation for international economic regulation: if international law did not regulate resources at all, the international order would be that much more unjust. A feminist deconstruction shows the need for clear, transparent, and well-balanced rules and dispute settlement resolution systems, and not their absence. This direction is the one progressively taken by projects of reform.
{"title":"International Arbitration","authors":"Hélène Ruiz Fabri, Edoardo Stoppioni","doi":"10.1093/law/9780198796190.003.0022","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0022","url":null,"abstract":"This chapter examines some of the methodological elements of feminist\u0000 approaches to international law to rethink international arbitration.\u0000 The central focus of a feminist prism appears to be whether\u0000 international arbitration is subjugated by patriarchal domination\u0000 structures, bias and injustice, thus mirroring and even reinforcing the\u0000 idiosyncrasies of international law, especially international economic\u0000 law. Probably, one could answer yes to all these questions, and this is\u0000 essentially why the legitimacy of international arbitration is so much\u0000 at stake. However, the absence of such a dispute settlement system would\u0000 not necessarily lead to a better situation for international economic\u0000 regulation: if international law did not regulate resources at all, the\u0000 international order would be that much more unjust. A feminist\u0000 deconstruction shows the need for clear, transparent, and well-balanced\u0000 rules and dispute settlement resolution systems, and not their absence.\u0000 This direction is the one progressively taken by projects of reform.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114782377","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}
Pub Date : 2020-09-10DOI: 10.1093/law/9780198796190.003.0006
U. Kriebaum
This chapter assesses the role of human rights in international investment arbitration. The treatment of human rights issues by investment tribunals has received increased attention in recent years, especially from the academic world. This is particularly so because tribunals have adopted varying approaches when confronted with human rights-based arguments. Some have responded in a negative way, declining to exercise jurisdiction when human rights were concerned. Others declined to discuss human rights arguments, noting that investment protection provisions were more favourable to investors than human rights law. Others applied human rights law where it composed part of the applicable law by virtue of the host State being a party to a human rights treaty. And some, when interpreting investment protection treaties, drew inspiration from approaches used by human rights courts, despite the decisive human rights treaty not being in force in the host state in the case at hand. The chapter then reflects upon the requirements for the application of human rights law in investment disputes.
{"title":"Human Rights and International Investment Arbitration","authors":"U. Kriebaum","doi":"10.1093/law/9780198796190.003.0006","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0006","url":null,"abstract":"This chapter assesses the role of human rights in international\u0000 investment arbitration. The treatment of human rights issues by\u0000 investment tribunals has received increased attention in recent years,\u0000 especially from the academic world. This is particularly so because\u0000 tribunals have adopted varying approaches when confronted with human\u0000 rights-based arguments. Some have responded in a negative way, declining\u0000 to exercise jurisdiction when human rights were concerned. Others\u0000 declined to discuss human rights arguments, noting that investment\u0000 protection provisions were more favourable to investors than human\u0000 rights law. Others applied human rights law where it composed part of\u0000 the applicable law by virtue of the host State being a party to a human\u0000 rights treaty. And some, when interpreting investment protection\u0000 treaties, drew inspiration from approaches used by human rights courts,\u0000 despite the decisive human rights treaty not being in force in the host\u0000 state in the case at hand. The chapter then reflects upon the\u0000 requirements for the application of human rights law in investment\u0000 disputes.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127070072","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}
Pub Date : 2020-09-10DOI: 10.1093/law/9780198796190.003.0021
Horatia Muir Watt
This chapter discusses international arbitration as a crucial part of the legal framework that has progressively enabled the contemporary neo-liberal orientation of global governance. As such, it presents the perspective of critical private international law. If the latter discipline constitutes a significant viewpoint in this respect, it is precisely because it provided the foundational legal tools and discourse by means of which international arbitration attained such astounding success as a cornerstone of cross-border trade and investment regimes. The specific contention here is that in sanctifying freedom of contract to an unprecedented degree, including unrestricted party choice of law and forum, it has deactivated the regulatory constraints to which private actors are subject in a domestic setting and, involuntarily thereby, sealed the ‘loss of control’ by nation-states of various crucial aspects of the global economy. The chapter then explores the grievances generally addressed to arbitration as emblematic of the privatization of global governance, understood alternatively as a confiscation of power in the hands of a happy few individuals or as the subordination of public concerns to private interests.
{"title":"International Arbitration","authors":"Horatia Muir Watt","doi":"10.1093/law/9780198796190.003.0021","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0021","url":null,"abstract":"This chapter discusses international arbitration as a crucial part of the\u0000 legal framework that has progressively enabled the contemporary\u0000 neo-liberal orientation of global governance. As such, it presents the\u0000 perspective of critical private international law. If the latter\u0000 discipline constitutes a significant viewpoint in this respect, it is\u0000 precisely because it provided the foundational legal tools and discourse\u0000 by means of which international arbitration attained such astounding\u0000 success as a cornerstone of cross-border trade and investment regimes.\u0000 The specific contention here is that in sanctifying freedom of contract\u0000 to an unprecedented degree, including unrestricted party choice of law\u0000 and forum, it has deactivated the regulatory constraints to which\u0000 private actors are subject in a domestic setting and, involuntarily\u0000 thereby, sealed the ‘loss of control’ by nation-states of various\u0000 crucial aspects of the global economy. The chapter then explores the\u0000 grievances generally addressed to arbitration as emblematic of the\u0000 privatization of global governance, understood alternatively as a\u0000 confiscation of power in the hands of a happy few individuals or as the\u0000 subordination of public concerns to private interests.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"240 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122716945","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}
Pub Date : 2020-09-10DOI: 10.1093/law/9780198796190.003.0004
J. Paulsson
This chapter details the process of the appointment of arbitrators. In modern usage, arbitration is binding, and anything else created by agreement is some form or another of what might generically be referred to as third-party assisted negotiation. This explains why arbitration contemplates an odd number of arbitrators; indeed, laws regulating arbitration frequently explicitly require it. It follows that the ‘odd’ arbitrator, i.e. the one whose voice will be decisive in the event of failure of unanimity, must be appointed jointly, or by a neutral mechanism agreed by the arbitrants. That is simple enough when the process calls for a sole arbitrator. However, if the tribunal is to be composed of three arbitrators, it is often agreed that each side may select anyone it wishes provided they satisfy minimal criteria—such as professional qualifications and the readiness to declare themselves independent and impartial. The chapter then considers the different appointment methods. It specifically evaluates the practice of unilateral appointments, which introduces an adversarial element into the very deliberation of the arbitral tribunal.
{"title":"Appointment of Arbitrators","authors":"J. Paulsson","doi":"10.1093/law/9780198796190.003.0004","DOIUrl":"https://doi.org/10.1093/law/9780198796190.003.0004","url":null,"abstract":"This chapter details the process of the appointment of arbitrators. In\u0000 modern usage, arbitration is binding, and anything else created by\u0000 agreement is some form or another of what might generically be referred\u0000 to as third-party assisted negotiation. This explains why arbitration\u0000 contemplates an odd number of arbitrators; indeed, laws regulating\u0000 arbitration frequently explicitly require it. It follows that the ‘odd’\u0000 arbitrator, i.e. the one whose voice will be decisive in the event of\u0000 failure of unanimity, must be appointed jointly, or by a neutral\u0000 mechanism agreed by the arbitrants. That is simple enough when the\u0000 process calls for a sole arbitrator. However, if the tribunal is to be\u0000 composed of three arbitrators, it is often agreed that each side may\u0000 select anyone it wishes provided they satisfy minimal criteria—such as\u0000 professional qualifications and the readiness to declare themselves\u0000 independent and impartial. The chapter then considers the different\u0000 appointment methods. It specifically evaluates the practice of\u0000 unilateral appointments, which introduces an adversarial element into\u0000 the very deliberation of the arbitral tribunal.","PeriodicalId":448349,"journal":{"name":"The Oxford Handbook of International Arbitration","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131816345","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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