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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: Alan Scott Rau
Publisher: BRILL
ISBN: 9004388923
Category : Law
Languages : en
Pages : 608
Get Book
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: Yuliya Chernykh
Publisher: BRILL
ISBN: 9004414703
Category : Law
Languages : en
Pages : 629
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Book Description
Contracts are relevant, frequently central, for a significant number of investment disputes. Yet, the way tribunals ascertain their content remains largely underexplored. How do tribunals interpret contracts in investment treaty arbitration? How should they interpret contracts? Does national law have any role to play? Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue addresses these questions. The monograph offers a valuable insight into the practice and theory of contract interpretation in investment treaty arbitration. By proposing a theoretical frame for seamless integration of contract interpretation into the overall structure of decision-making, the book contributes to predictability, coherence, sufficiency and correctness of the tribunals’ interpretative practices in investment treaty arbitration.
Author: Hélène Ruiz Fabri
Publisher: Bloomsbury Publishing
ISBN: 1509929061
Category : Law
Languages : en
Pages : 663
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Book Description
Written by leading experts in the field, this collection offers a critical and comparative analysis of the existing case law on international investment law. The book makes a topical contribution to the existing literature, showing most notably that: (1) international investment law has a longer history than that generally considered and that this history is fundamental to understanding its development; (2) international investment law is crafted today by a large number of actors. These include not only investment arbitrators, but also a variety of international and national courts and tribunals; and (3) the literature and case law in languages other than English and from different legal cultures is essential to grasp the essence of the development of the topic. This book brings together more than 40 experts from different countries and legal traditions and combines conceptual analysis and archival investigation of landmark case law to provide the reader with a fresh and innovative understanding of the breadth of international investment law.
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: 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: C. L. Lim
Publisher: Cambridge University Press
ISBN: 1108573800
Category : Law
Languages : en
Pages : 551
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Book Description
This Cambridge Companion explores the main senses of the term 'international arbitration'; including the arbitration of private commercial disputes, disputes between a State and a foreign investor, disputes between States and also between a State and its parts. It treats these various forms as being inter-related, if not always conceptually, then as a matter of history, rather than as collective victims of imprecise language. The book touches not only on current debates but also more foundational aspects, such as the tension between party autonomy and State authority, and the pacifist roots of modern international arbitration. Thus, it aims to offer a concise survey of the history, the main issues as well as the latest developments in a single, handy volume. It will be an invaluable introduction to the subject for students studying international arbitration, commercial law and international law, and also lawyers and the general reader.
Author: Victor Ferreres Comella
Publisher: Cambridge University Press
ISBN: 1108906745
Category : Law
Languages : en
Pages : 235
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Book Description
This work is the first systematic discussion of arbitration from a constitutional perspective, covering the most important types of arbitration, including domestic arbitration in private law, international commercial arbitration, investment treaty arbitration, and state-to-state arbitration. Victor Ferreres Comella argues for the recognition of a constitutional right to arbitration in the private sphere and discusses the constraints that the state is entitled to place on this right. He also explores the conditions under which investment treaty arbitration is constitutionally legitimate, and highlights the shortcomings of international adjudication from a constitutional perspective. The rich landscape of arbitration is explained in clear language, avoiding unnecessary technical jargon. Using examples drawn from a wide variety of domains, Ferreres bridges the gap between constitutional and arbitral theory.
Author: Jonathan Harris
Publisher: Oxford University Press
ISBN: 0192867989
Category :
Languages : en
Pages : 449
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Book Description
This collection is in honour of the remarkable career of Lord Collins. The book offers a set of unique insights into the conduct of cross-border litigation; the judicial role in international cases; the shape of English private international law; the conduct of international arbitration; and the interface with public international law.
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: Dire Tladi
Publisher: BRILL
ISBN: 9004521488
Category : Law
Languages : en
Pages : 208
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Book Description
This study assesses the rules of international law relevant to the use of force against non-State actors. The rules of international law on the use of force are the lynchpin of the project of international law for a more secure and peaceful world. Yet, as important as they are, the rules of international law on the use of force are also highly contentious. With the shift in the nature of conflicts from inter-State wars to conflicts involving non-State actors, and with the growth in the threat of global terrorism, the focus of the law on the use of force has shifted to the use of force against non-State actors. To assess the permissibility of the use of force against non-State actors, this study will focus on two grounds that have been advanced as bases for the extraterritorial use of force against non-State actors: the right of a State to act in self-defence and intervention by invitation. While there are other grounds that have been advanced for the extraterritorial use of force in international law, it is only in respect of these two grounds that the role of non-State actors has a significant influence on the legality or not of the use of force.
