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Author: A. J. van den Berg
Publisher: Kluwer Law International B.V.
ISBN: 9041123482
Category : Law
Languages : en
Pages : 642
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Book Description
ICCA's Congress Series No. 12, reflecting the contributions of numerous renown arbitration experts to the 2004 ICCA Beijing Conference, commences with an overview of the current international arbitration regime in China and Hong Kong, noting both the progress that has been achieved and the work that remains to be done there. The remainder of the volume comprises two sets of papers on contemporary substantive and procedural issues in international commercial arbitration. The first set contains in-depth reports on the topical subjects of arbitration of foreign investment disputes, the granting of provisional or interim measures with respect to arbitration and the enforceability of awards, supplemented by commentary from the point of view of various specializations and regions. The second, also using the format of reports and commentary, addresses modalities of conciliation and settlement in relation to arbitration, including various non-binding (ADR) processes, issues (drafting step clauses and confidentiality) in integrated dispute resolution systems, which may combine conciliation and arbitration, and the role of arbitrators as settlement facilitators.
Author: A. J. van den Berg
Publisher: Kluwer Law International B.V.
ISBN: 9041123482
Category : Law
Languages : en
Pages : 642
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Book Description
ICCA's Congress Series No. 12, reflecting the contributions of numerous renown arbitration experts to the 2004 ICCA Beijing Conference, commences with an overview of the current international arbitration regime in China and Hong Kong, noting both the progress that has been achieved and the work that remains to be done there. The remainder of the volume comprises two sets of papers on contemporary substantive and procedural issues in international commercial arbitration. The first set contains in-depth reports on the topical subjects of arbitration of foreign investment disputes, the granting of provisional or interim measures with respect to arbitration and the enforceability of awards, supplemented by commentary from the point of view of various specializations and regions. The second, also using the format of reports and commentary, addresses modalities of conciliation and settlement in relation to arbitration, including various non-binding (ADR) processes, issues (drafting step clauses and confidentiality) in integrated dispute resolution systems, which may combine conciliation and arbitration, and the role of arbitrators as settlement facilitators.
Author: Jeffrey Waincymer
Publisher: Kluwer Law International B.V.
ISBN: 9041140670
Category : Law
Languages : en
Pages : 1363
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Book Description
Central to the book’s purpose is the procedural challenge facing arbitrators at each and every stage of the arbitral process when fairness arguments conflict with efficiency concerns and trade-offs must be determined. Some key themes include how can a tribunal be fair, and in particular be neutral, if parties are so diverse? How can arbitration be made efficient and cost-effective without undue inroads into fairness and accuracy? How does a tribunal do what is best if the parties are choosing a suboptimal process? When can or must an arbitrator ignore procedural choices made by the parties? The author thoroughly evaluates competing arguments and adds his own practical tips, expertly synthesizing and engaging with the conference literature and differing authors’ views. He identifies criteria that offer a harmonized approach to each stage of the arbitral process, with particular attention to such aspects of international arbitration as: appropriate trade-offs between flexibility and certainty; the rights, duties and powers of arbitrators; appointment and challenge of arbitrators; responses to ‘guerilla’ tactics; drafting of arbitration agreements, including specialty clauses; drafting of required commencement notices and response documents; set-off; fast track arbitration and other efficiency options; strategic use of preliminary conferences and timetabling; online arbitration; multi-party, multi-contract, class arbitration; amicus and third party funders; pre-arbitral referees and interim relief; witness evidence, both factual and expert; documentary evidence, production obligations, and challenges to production; identifying applicable law; and remedies and costs.
Author: Frank-Bernd Weigand
Publisher: OUP Oxford
ISBN: 0191579971
Category : Law
Languages : en
Pages : 2585
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Book Description
The Practitioner's Handbook on International Commercial Arbitration provides concise country reports on important jurisdictions for international arbitral proceedings, as well as commentaries on well-known arbitration rules which are frequently incorporated in international legal agreements. Most international commercial contracts now include an arbitration clause as an alternative to resolving disputes in the state courts. This second edition of the Practitioner's Handbook includes newly updated country chapters, expanded international coverage and commentary on the most important arbitration rules worldwide. It is written by world-leading arbitration practitioners and academics and combines a practical approach with in-depth legal research and analysis of important national and international case law. The book is unique in its coverage, providing uniformly designed country reports and thorough commentaries on internationally recognized arbitration rules in just one volume. There are individual chapters for the following countries: Austria, Belgium, China & Hong Kong, England, France, Germany, Italy, Netherlands, Singapore, Sweden, Switzerland, USA. Each country report covers: jurisdiction, the tribunal, arbitration procedure, the award, amendments and challenge to the award, liability of arbitrators and enforcement of national awards; and provides details of national arbitration laws, arbitral institutions in the jurisdiction, model arbitration clauses and a bibliography, including a list of key judicial decisions. The first edition was reviewed as "an outstanding book" and "an extremely useful tool". The work is an indispensable one-stop reference point for lawyers drafting international arbitration clauses or handling arbitration proceedings in different countries.
Author: Dilyara Nigmatullina
Publisher: Routledge
ISBN: 1351068628
Category : Law
Languages : en
Pages : 318
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Book Description
Securing fast, inexpensive, and enforceable redress is vital for the development of international commerce. In a changing international commercial dispute resolution landscape, the combined use of mediation and arbitration has emerged as a dispute resolution approach which offers these benefits. However, to date there has been little agreement on several aspects of the combined use of processes, which the literature often explains by reference to the practitioner’s legal culture, and there is debate as to how appropriate it is for the same neutral to conduct both mediation and arbitration. Identifying the main ways of addressing concerns associated with the same neutral conducting both mediation and arbitration (same neutral (arb)-med-arb), this book examines how effectively these methods achieve the goal of fast, inexpensive, and enforceable dispute resolution, evaluating to what extent the perception and use of the same neutral (arb)-med-arb depends on the practitioner’s legal culture, arguing that this is not a ‘one-size-fits-all’ process. Presenting an empirical study of the combined use of mediation and arbitration in international commercial dispute resolution, this book synthesises existing ways of addressing concerns associated with the same neutral (arb)-med-arb to provide recommendations on how to enhance the use of combinations in the future.
Author: Khan, Basheer Ahmed Mohammed
Publisher: IGI Global
ISBN: 1668440423
Category : Law
Languages : en
Pages : 298
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Book Description
The resolution of international commercial disputes poses a considerable challenge. Traditional litigation often results in costly and adversarial proceedings, resulting in damaging not only the financial resources of the parties involved but also causing potential conflicts for vital business collaborations. The need for a more efficient, cost-effective, and amicable alternative to resolve these disputes has never been more pressing, especially for academic scholars and legal practitioners seeking a comprehensive understanding of this complex field. Policies, Practices, and Protocols for International Commercial Arbitration emerges as the definitive solution, and offers a profound overview of international commercial arbitration, enabling scholars and legal enthusiasts to grasp its intricate details. By delving into topics like the significance of Alternative Dispute Resolution (ADR), the nature of arbitration, and the various aspects of international arbitration laws, the book equips readers with the knowledge needed to navigate the evolving landscape of dispute resolution. The book covers the entire spectrum of international commercial arbitration. It offers a roadmap for scholars and practitioners to understand the importance of ADR, unravel the complexities of arbitration agreements, and explore the nuances of enforcing arbitral awards.
Author: Dean Lewis
Publisher: Kluwer Law International B.V.
ISBN: 9041167021
Category : Law
Languages : en
Pages : 255
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Book Description
Numerous jurisdictions worldwide have augmented their ratification of the New York Convention of 1958 with the UNCITRAL Model Law 1985 (UML), which takes a giant step forward toward global uniformity in legal application and understanding of the arbitration process. This book develops a standard or benchmark for the UML objective of uniformity, using the relevant legislation and case law of Hong Kong, Singapore, and Australia to consider whether a uniform approach to implementation of the UML and its interpretation is being achieved across those jurisdictions. The author’s methodological tools are eminently adaptable to other jurisdictions. Given the importance of the ability to set aside an arbitral award, the body of case law on setting aside and the directly related area of enforcement, the emphasis throughout is on Article 34. In addition, the study considers: - the meaning of uniformity in law and in the context of the UML; - the correct approach to interpretation of the UML pre and post Article 2A; - the interpretational relationship between the UML and the Convention on Contracts for the International Sale of Goods (CISG); - the relationship between the UML and the New York Convention; - the degree of textual uniformity of Article 34 with the three jurisdictions focused on; and - the degree of applied uniformity of Article 34 both in terms of juristic methodology and similarity of results. The author, with more than thirty years of practice in the field of commercial arbitration in Hong Kong, has had access to voluminous cases spanning decades and brings his specialist expertise to the subject. This book considers whether the UML has succeeded in its aim of achieving uniformity. It serves as a guide, both academic and practical, to exploring and adopting the correct approach to the interpretation of the UML as well as to the method of classification of court decisions under the UML. This study is of immeasurable academic and practical value.
Author: Ajar Rab
Publisher: Kluwer Law International B.V.
ISBN: 9403537558
Category : Law
Languages : en
Pages : 592
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Book Description
Interim measures by courts as well as tribunals are often critical to succeed in arbitration proceedings and to effectively safeguard the rights of parties pending the final adjudication of their dispute. This important book comprises a comprehensive review of interim measures in international commercial arbitration granted by courts and tribunals across jurisdictions that have adopted the UNCITRAL Model Law to critically assess the practical fault lines in the Indian arbitration regime. The book provides an in-depth analysis of the following: all reported judgments of the Indian Supreme Court and the High Courts from 1993 to 2022 on issues concerning interim measures; practical application of the UNCITRAL Model Law (and the revisions in 2006) by national arbitration statutes of over 80 jurisdictions with respect to interim measures; comparative practice and jurisprudence on interim measures in international commercial arbitration; rules of major arbitral institutions on the power and scope of interim measures granted by tribunals; detailed analysis of different types of interim measures, including anti-suit, anti-arbitration injunctions, security for costs, and interim measures in aid of foreign-seated arbitrations, the standards to be applied, and the burden of proof to be demonstrated for each type of measure; and issues of enforcement of interim measures in domestic, international, and foreign seated arbitrations. The current position of law in India and the problems plaguing the country’s Arbitration and Conciliation Act 1996 (IAA), as amended in 2015 with respect to interim measures, are brought into direct comparison with other Model Law jurisdictions, offering an analysis of case laws, practical insights and cogent suggestions based on best practices that can be adopted by parties and tribunals. The Appendices provide a detailed list of statutory provisions of countries that have adopted the Model Law along with rules of major arbitral institutions on interim measures. The author not only describes the current position of law in India and other Model Law jurisdictions on interim measures but also reveals a comprehensive understanding of the requests for interim measures, and their enforcement in domestic, international, and foreign seated arbitrations. This book engages in a comprehensive and clear discussion on the fine line between court assistance and court intervention, especially in the case of interim measures and suggests draft provisions that India and other jurisdictions can adopt in order to align with the 2006 revisions to the Model Law to foster certainty, predictability, and efficiency in case of interim measures in international commercial arbitration.
Author: Joanna Jemielniak
Publisher: Routledge
ISBN: 1317106202
Category : Law
Languages : en
Pages : 288
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Book Description
This book fills a gap in legal academic study and practice in International Commercial Arbitration (ICA) by offering an in-depth analysis on legal discourse and interpretation. Written by a specialist in international business law, arbitration and legal theory, it examines the discursive framework of arbitral proceedings, through an exploration of the unique status of arbitration as a legal and semiotic phenomenon. Historical and contemporary aspects of legal discourse and interpretation are considered, as well as developments in the field of discourse analysis in ICA. A section is devoted to institutional and structural determinants of legal discourse in ICA in which ad hoc and institutional forms are examined. The book also deals with functional aspects of legal interpretation in arbitral discourse, focusing on interpretative standards, methods and considerations in decision-making in ICA. The comparative examinations of existing legal framework and case law reflect the international nature of the subject and the book will be of value to both academic and professional readers.
Author: Franco Ferrari
Publisher: Kluwer Law International B.V.
ISBN: 9403503173
Category : Law
Languages : en
Pages : 560
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Book Description
In international arbitration, deference entails that one decision-maker does not make an autonomous assessment but limits its decision-making power out of respect for the decision or authority of another actor. For example, a court exercising post-award review might refrain from reviewing a question of procedure de novo but instead defer to a prior determination made by the arbitral tribunal. In this book, prominent arbitration practitioners and academics offer the first systematic analysis of such deference in international arbitration. With abundant reference to case law from major arbitration hubs, the analysis is organized around the three relationships in which questions of deference arise: public-private relationships in which a State actor (e.g., a court) must decide whether it should pay deference to determinations made by a private actor (e.g., a tribunal or an arbitral institution); public-public relationships in which a State actor (e.g., a court at the place of recognition and enforcement) must decide whether it should pay deference to another State actor (e.g., a court at the seat); and private-private relationships in which a private actor (e.g., an arbitral tribunal) must decide whether it should pay deference to another private actor (e.g., another arbitral tribunal or an arbitral institution). The book makes an important contribution to tracing the boundaries of the multiple layers of control over arbitration proceedings. It takes a giant step towards establishing the right equilibrium between the different layers of authority and thus meeting a pivotal challenge for the viability of arbitration as a form of dispute resolution.
Author: Alfonso Gómez-Acebo
Publisher: Kluwer Law International B.V.
ISBN: 9041166858
Category : Law
Languages : en
Pages : 240
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Book Description
The agreement of disputing parties to each make a unilateral appointment of an arbitrator is among the most distinctive features of arbitral practice. A detailed examination, long overdue, of how this feature affects the actual process of arbitration is presented in this book. The study includes a historical analysis of unilateral nominations, a critical assessment of how the unilateral appointments system currently works and an empirical study of challenges of arbitrators. The author's critical assessment addresses several issues including: - limits to the right of the parties to make unilateral appointments; - the principle of equality of the parties in the constitution of the arbitral tribunal; - arbitrators’ duty to be impartial and independent; - specific problems of bias in tribunals with party-appointed members; - the question of whether a different standard of impartiality and independence in party-appointed arbitrators makes any sense; - the presumption that party-appointed arbitrators can do things that presiding arbitrators cannot; and - the question of whether it is worth keeping the system of unilateral appointments as the default method for the constitution of multiple-member tribunals, or keeping it at all. The empirical study, in which the author offers a comparative analysis of challenges of arbitrators taking into account the method of appointment of the arbitrator, reveals interesting differences and coincidences between party-appointed and non-party-appointed arbitrators. The book ends with some suggestions on how the system of unilateral appointments could be improved, namely in order to increase the trust of each party in the arbitrator appointed by the other party and to allow an accurate match between what arbitration end-users may want from party-appointed arbitrators and what they ultimately get. For both its thorough and well-informed analysis and its sound recommendations, the book is sure to be welcomed by professionals in the arbitral community worldwide, as well as by arbitration law academics.
