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Author: Faidon Varesis
Publisher: Taylor & Francis
ISBN: 100081520X
Category : Law
Languages : en
Pages : 278
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Book Description
International commercial arbitration and litigation are often seen as competing fora, fields of law, or markets. This intersection is at its highest at the forefront of any proceedings, at the jurisdictional stage. The analysis of jurisdictional issues at the forefront of an arbitration has been confined in a descriptive analysis of the law and jurisprudence, dealing with jurisdictional intersections almost in a mechanistic manner. These are not, however, issues which can be treated as mere mechanical rules. They are issues pertaining to core notions of authority, sovereignty, their origins and their allocation. At the same time, the pragmatic and practical domination of party autonomy is a fact which cannot be disregarded when one considers the normative and theoretical foundations of any model of dealing with these issues. This book moves beyond an analysis of arbitration and jurisdiction clauses to reconcile theory and practice, and provides an underlying theoretical model to explain and regulate jurisdictional intersections at the early stages of an arbitration from a private international law perspective. It combines both an in-depth engagement with the theoretical literature as well as a close examination and analysis of its practical consequences in the form of a restatement of the law of England and Wales. From a methodological perspective, it utilises contemporary theories in private international law to propose a coherent model of regulating arbitral jurisdictions which promotes autonomy and freedom of the parties at this stage. Demonstrating, first, how the theoretical model can be applied in practice and, second, to provide a basis for a potential future top-down or bottom-up approach of adopting the proposed model, it includes a succinct and practical codification of the current state of affairs in relation to the whole spectrum of jurisdictional issues in England and Wales to serve as a useful tool for practitioners considering jurisdictional issues both from the perspective of State courts and from the perspective of arbitral tribunals, as well as academics researching in these areas.
Author: Faidon Varesis
Publisher: Taylor & Francis
ISBN: 100081520X
Category : Law
Languages : en
Pages : 278
Get Book
Book Description
International commercial arbitration and litigation are often seen as competing fora, fields of law, or markets. This intersection is at its highest at the forefront of any proceedings, at the jurisdictional stage. The analysis of jurisdictional issues at the forefront of an arbitration has been confined in a descriptive analysis of the law and jurisprudence, dealing with jurisdictional intersections almost in a mechanistic manner. These are not, however, issues which can be treated as mere mechanical rules. They are issues pertaining to core notions of authority, sovereignty, their origins and their allocation. At the same time, the pragmatic and practical domination of party autonomy is a fact which cannot be disregarded when one considers the normative and theoretical foundations of any model of dealing with these issues. This book moves beyond an analysis of arbitration and jurisdiction clauses to reconcile theory and practice, and provides an underlying theoretical model to explain and regulate jurisdictional intersections at the early stages of an arbitration from a private international law perspective. It combines both an in-depth engagement with the theoretical literature as well as a close examination and analysis of its practical consequences in the form of a restatement of the law of England and Wales. From a methodological perspective, it utilises contemporary theories in private international law to propose a coherent model of regulating arbitral jurisdictions which promotes autonomy and freedom of the parties at this stage. Demonstrating, first, how the theoretical model can be applied in practice and, second, to provide a basis for a potential future top-down or bottom-up approach of adopting the proposed model, it includes a succinct and practical codification of the current state of affairs in relation to the whole spectrum of jurisdictional issues in England and Wales to serve as a useful tool for practitioners considering jurisdictional issues both from the perspective of State courts and from the perspective of arbitral tribunals, as well as academics researching in these areas.
Author: George A. Bermann
Publisher: BRILL
ISBN: 9004348271
Category : Law
Languages : en
Pages : 648
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Book Description
No field of legal scholarship or practice operates in the world of private international law as continuously and pervasively as does international arbitration, commercial and investment alike. Arbitration’s dependence on private international law manifests itself throughout the life-cycle of arbitration, from the crafting of an enforceable arbitration agreement, through the entire arbitral process, to the time an award comes before a national court for annulment or for recognition and enforcement. Thus international arbitration provides both arbitral tribunals and courts with constant challenges. Courts may come to the task already equipped with longstanding private international law assumptions, but international arbitrators must largely find their own way through the private international law thicket. Arbitrators and courts take guidance in their private international law inquiries from multiple sources: party agreement, institutional rules, treaties, the national law of competing jurisdictions and an abundance of “soft law”, some of which may even be regarded as expressing an international standard. In a world of this sort, private international law resourcefulness is fundamental.
Author: Franco Ferrari
Publisher: Walter de Gruyter
ISBN: 3866539290
Category : Law
Languages : en
Pages : 481
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Book Description
Irrespective of the increasing harmonization of law at the transnational level, every arbitration raises a number of confl ict of laws problems relating to procedural questions as well as to issues concerning the merits of the case. Unlike a state court judge, the arbitrator has no "lex fori" in the proper sense providing the relevant confl ict rules to determine the applicable law. This raises the question of what confl ict of laws rules to apply and, consequently, of the extent of the freedom the arbitrator enjoys in dealing with this and related issues. The best example of the importance of confl ict of laws questions in arbitration is the Vivendi-Elektrim saga where the outcome of the various proceedings depended on the question of characterization. This very beneficial book is dealing with - the arbitration agreement, - the jurisdiction of the arbitral tribunal, - the law applicable to the merits and - the arbitration procedure.
Author: Zheng Sophia Tang
Publisher: Routledge
ISBN: 113601344X
Category : Law
Languages : en
Pages : 312
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Book Description
Arbitration and jurisdiction agreements are frequently used in transnational commercial contracts to reduce risk, gain efficacy and acquire certainty and predictability. Because of the similarities between these two types of procedural autonomy agreements, they are often treated in a similar way by courts and practitioners. This book offers a comprehensive study of the prerequisites, effectiveness, and enforcement of exclusive jurisdiction and arbitration agreements in international dispute resolution. It examines whether jurisdiction and arbitration clauses have identical effects in private international law and whether they have been or should be given the same treatment by most countries in the world. By comparing the treatment of these clauses in the US, China, UK and EU, Zheng Sophia Tang demonstrates how, in practice, exclusive jurisdiction and arbitration agreements are enforced. The book considers whether the Hague Convention on Choice of Court Agreements could be treated as a litigating counterpart to the New York Convention, and whether it could work successfully to facilitate judicial cooperation and party autonomy in international commerce. This book breaks new ground in combining updated materials in EU, US and UK law with unique resources on Chinese law and practice. It will be valuable for academics and practitioners working in the field of private international law and international arbitration.
Author: Sandra Synková
Publisher: Springer Science & Business Media
ISBN: 3319001345
Category : Law
Languages : en
Pages : 321
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Book Description
International arbitration has become the favored method of resolving disputes between business partners in almost every aspect of international trade, commerce, and investment. The resolution of a dispute by means of international arbitration provides the parties with an opportunity to resolve their disputes in a private, confidential, cost and time efficient manner before a neutral tribunal of their choice. However, challenges to arbitral jurisdiction have become a common practice in the field. Resolution of such challenges may significantly delay the resolution of the parties’ primary substantive dispute, increase overall dispute resolution costs and even whittle down the benefits of the parties’ bargain to arbitrate. Accordingly, adopting a proper approach to the resolution of such disputes becomes crucial to the efficacy of international arbitration as a system of dispute resolution. The present book provides a comparative analysis of the practice of three carefully selected legal orders: the English, German and Swiss and outlines possible ways forward. As the work strikes a balance between theory and practice, it will appeal to practitioners, researchers, but also students looking to develop their understanding of the international arbitration field.
Author: Peter Edward Nygh
Publisher: Kluwer Law International
ISBN:
Category : Law
Languages : en
Pages : 40
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Book Description
International commercial arbitration raises issues other than the choice of the law applicable to the principal contract. Autonomy may have a wider meaning, extending beyond the choice of applicable law to the choice of arbitration itself, and of the place or places where it is to be conducted. Nor is it altogether clear what the forum is, if any. This paper raises the fundamental question of what gives the arbitrator his or her competence--the will of the parties or the law of the seat of arbitration which the parties may, or may not, have chosen? The paper also suggests an answer to the questions of which choice of law rules, if any, should be applied by the arbitrators, to what extent arbitrators will apply mandatory rules (règles d'application immédiate), as well as which law governs the procedural aspects and whether it has to be the procedural law of a national system. The new English Arbitration Act 1996 has also been taken into account.
Author: Alan Scott Rau
Publisher: BRILL
ISBN: 9004388923
Category : Law
Languages : en
Pages : 608
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Book Description
The ultimate question that runs through all of our law of arbitration is the allocation of responsibility between state courts and arbitral tribunals : If private tribunals assume the power to bind others in a definitive fashion, we must ask, where does this authority come from ? Fundamentally different in this respect from a state judge, a private arbitrator may only derive his legitimacy from that exercise of private ordering and self-government which characterizes any voluntary commercial transaction. This work begins then with the dimensions of that “consent” which alone can justify arbitral jurisdiction. The discussion is then carried forward to explore how party autonomy in the contracting process may be expanded, giving rise to the voluntary reallocation of authority between courts and arbitrators. It concludes with the necessary inquiry into the autonomy with respect to the “chosen law” that will govern the agreement to arbitrate itself.
Author: Sai Ramani Garimella
Publisher: Springer
ISBN: 9811034583
Category : Law
Languages : en
Pages : 442
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Book Description
This book shows how, with the increasing interaction between jurisdictions spearheaded by globalization, it is gradually becoming impossible to confine transactions to a single jurisdiction. Presented in the form of a compendium of essays by eminent academics and practitioners in the field, it provides a detailed overview of private, international law practice in South Asian nations, addressing contemporary discourse within this knowledge domain. Conflict of laws/private international law arises from the universal acknowledgment that it is difficult to govern human transactions solely by the local law. The research presented addresses the three major threads of private international law – jurisdiction, choice of law and enforcement – within each of the South Asian countries in the areas of family law and commercial law. The research in family law domain includes traditional areas such as marriage, divorce and maintenance, as well as some of the contemporary concerns in this region – inter-country child retrieval, surrogacy, and the country statement on accession to the Hague Conventions related to this domain. In commercial law the research explores the concerns raised with regard to choice of law issues in transnational contracts, and also enforcement of foreign judgment/arbitral awards in the nations of this region.
Author: James H. Carter
Publisher: Oxford University Press
ISBN: 019993861X
Category : Law
Languages : en
Pages : 725
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Book Description
International Commercial Arbitration in New York focuses on the distinctive aspects of international arbitration in New York. Serving as an essential strategic guide, this book allows practitioners to represent clients more effectively in cases where New York is implicated as either the place of arbitration or evidence or assets are located in New York. Each chapter elucidates a vital topic, including the existing New York legal landscape, drafting considerations for clauses designating New York as the place of arbitration, and material and advice on selecting arbitrators. The book also covers a series of topics at the intersection of arbitral process and the New York courts, including jurisdiction, enforcing arbitration agreements, and obtaining preliminary relief and discovery. Class action arbitration, challenging and enforcing arbitral awards, and biographical materials on New York-based international arbitrators is also included, making this a comprehensive, valuable resource for practitioners.
Author: Chittharanjan F. Amerasinghe
Publisher: BRILL
ISBN: 9004214763
Category : Law
Languages : en
Pages : 314
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Book Description
Examining the jurisdiction of international arbitral tribunals, International Arbitral Jurisdiction establishes general principles relating to such jurisdiction. The study refers to the principles of consent and its limitations, and also deals with such matters as interpretation of compromis and incidental jurisdiction.
