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Author: Andrea M. Steingruber
Publisher: OUP Oxford
ISBN: 0191638196
Category : Law
Languages : en
Pages : 727
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Book Description
Examining the notion, nature, and extent of consent in both commercial arbitration and investment arbitration, this book provides practitioners and academics with a thorough, case-related analysis of an issue which raises many questions. Whilst considering the evolution of arbitration and its consensual nature - enlargement of the parties' freedom to consent to arbitration, and development from commercial arbitration to investment arbitration - it addresses important theoretical questions to offer practical solutions. These include: how consent to arbitrate is expressed and when mutual consent to arbitration is reached; which law shall govern the arbitration agreement or, more particularly, consent as an element of the substantive validity of it; and, conversely, according to which law will a possible lack of consent be judged; how consent should be interpreted; which relationship exists between consent as part of the substantive validity of an arbitration agreement and its formal validity; which, if any, are the implied terms when consenting to arbitration; how consent to arbitrate influences procedural aspects (counterclaims, joinder, consolidation), and which solutions adopted by treaties, national laws or arbitration rules are, or would be, the most respectful of parties' consent in this respect; what in investment arbitration is the relationship between consent and most-favoured-nation clauses or the influence of umbrella clauses. The book includes original arguments and puts forward new suggestions with regard to the changeable consensual character of arbitration. It also provides a particular focus on problems that frequently arise in practice of international arbitration, for example issues related to complex multiparty arbitration and to jurisdictional questions in investment arbitration.
Author: Andrea M. Steingruber
Publisher: OUP Oxford
ISBN: 0191638196
Category : Law
Languages : en
Pages : 727
Get Book Here
Book Description
Examining the notion, nature, and extent of consent in both commercial arbitration and investment arbitration, this book provides practitioners and academics with a thorough, case-related analysis of an issue which raises many questions. Whilst considering the evolution of arbitration and its consensual nature - enlargement of the parties' freedom to consent to arbitration, and development from commercial arbitration to investment arbitration - it addresses important theoretical questions to offer practical solutions. These include: how consent to arbitrate is expressed and when mutual consent to arbitration is reached; which law shall govern the arbitration agreement or, more particularly, consent as an element of the substantive validity of it; and, conversely, according to which law will a possible lack of consent be judged; how consent should be interpreted; which relationship exists between consent as part of the substantive validity of an arbitration agreement and its formal validity; which, if any, are the implied terms when consenting to arbitration; how consent to arbitrate influences procedural aspects (counterclaims, joinder, consolidation), and which solutions adopted by treaties, national laws or arbitration rules are, or would be, the most respectful of parties' consent in this respect; what in investment arbitration is the relationship between consent and most-favoured-nation clauses or the influence of umbrella clauses. The book includes original arguments and puts forward new suggestions with regard to the changeable consensual character of arbitration. It also provides a particular focus on problems that frequently arise in practice of international arbitration, for example issues related to complex multiparty arbitration and to jurisdictional questions in investment arbitration.
Author: Ileana M. Smeureanu
Publisher: Kluwer Law International B.V.
ISBN: 9041132260
Category : Law
Languages : en
Pages : 242
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Book Description
After neutrality and international enforcement, the next most valued feature of international commercial arbitration is confidentiality. For reasons easy to imagine, businessmen do not want their trade secrets, business plans, strategies, contracts, financial results or any other types of business information to be publicly accessible, as would commonly happen in court proceedings. Yet the case law of arbitration shows that in practical terms confidentiality is not to be taken for granted - in fact, it has become one of the most undetermined matters in international arbitration. Although 'the emperor of arbitration may have clothes, ' as one scholar has quipped, his raiments of secrecy can be 'torn with surprising ease'. This book deciphers the current degree of confidentiality in international commercial arbitration as reflected by the most important arbitration rules, national laws, other arbitration-related enactments, and practices of arbitral tribunals and domestic courts globally. Drawing on this data and analysis, the author then sets forth criteria to assess the breach of confidentiality in international arbitration and the proper rules for protecting or sanctioning such breaches. What do we understand by confidentiality in arbitration? What are its limitations? Who is bound to observe it? How can we quantify its breach? In addressing these questions, the book engages such issues as the following: reasons for disclosure - e.g., for the establishment of a defence, for the enforcement of rights, in the public interest or in the interests of justice disclosure by consent, express or implied; circumstances triggering statutory obligation of disclosure; recent trends towards greater transparency in investor-State arbitration; court measures in support of arbitral confidentiality such as award of damages for breach of confidentiality; and categories of persons bound by confidentiality, including third parties such as witnesses and experts. Structured along the main stages of the arbitral process, the analysis covers the duty of confidentiality from the initiation of arbitral proceedings through their unfolding to the issuance of the award and after. The scope of confidentiality is reviewed in the practice of arbitral tribunals and domestic courts, and from the perspective of international arbitration institutions, with detailed attention to various arbitration rules and numerous significant cases. In its elucidation of the amount of confidentiality that 'veils' each phase of the arbitral process, and its ground-breaking identification of 'patterns of disclosure', this book is sure to raise awareness about the various facets and problems posed by confidentiality in arbitration. Although its scholarly contribution to the law of international commercial arbitration cannot be gainsaid, corporate counsel worldwide will quickly prize its more practical value.
Author: R. Doak Bishop
Publisher:
ISBN: 9780199551729
Category : Law
Languages : en
Pages : 0
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Book Description
This publication from the International Bureau of the Permanent Court of Arbitration (PCA) presents a collection of studies on the key issues found in complex international commercial and investment disputes. Renowned authors from Europe and North America consider issues from perspectives emanating from both the Anglo-American and Continental European legal systems. The authors consider international multiparty arbitration and its attendant problems from both a conceptual and practical perspective, beginning with the overarching legal problems of determining the proper parties to the arbitration and the ambit of contractual consent. Topics which are comprehensively examined include: Joiner of parties and consolidation of arbitral proceedings; the challenges of administration of multiparty arbitrations; investment arbitration involving multiple parties and multiparty issues in investor-state arbitration; classwide arbitration and arbitrating mass investor claims; lessons that can be learnt from mass claims processes; and enforcement issues. The book also includes a practitioner-oriented discussion of multiparty arbitration in the construction industry.
Author: Yves Derains
Publisher: Kluwer Law International B.V.
ISBN: 9041184015
Category : Law
Languages : en
Pages : 362
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Book Description
Today thousands of investors act globally in markets providing services, technology or capital in countries all around the world. This activity can be peacefully accomplished when both the investor and the host State know that the disputes will be resolved under the aegis of the investor-State arbitration regime, wherein an investor is provided with a direct right of action against a State, most commonly stemming from a bilateral or multilateral investment treaty. This book approaches the substantive and sometimes difficult concepts of investor-State arbitration in a clear and concise explanatory fashion. In the course of acquainting the reader with the basic legal concepts and policies of the regime, the authors address such issues as the following: • consent to jurisdiction; • State responsibility; • possible conflict of interests; • mechanisms for reviewing an award; • damages and costs; and • enforcement. The book examines a number of arbitration procedures arising from various perspectives with differing underlying assumptions while highlighting important cases. Given that investor-State arbitration is now under the public watch and facing many challenges, this remarkably clear and concise overview of the regime will prove to be of great value to in-house counsel and other practitioners, as well as to government policymakers and students.x`
Author: Paul D. Friedland
Publisher: Juris Publishing, Inc.
ISBN: 1933833068
Category : Law
Languages : en
Pages : 368
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Book Description
"This book, by a leading international arbitration practitioner, offers suggested language for every option that a drafter of an international arbitration clause may need. Following a succinct assessment of the choice between arbitration and litigation and commentary on the choices among arbitration fora and formats, the author presents an accessible how-to for drafting. While other works offer theory and a smattering of drafting tips, there is no other comprehensive collection of workable language, presented accessibly with easy-to-reference appendices. This book will be a standard reference for both in-house counsel and outside practitioners. This book provides, in an accessible format, clauses that address all the significant issues that contracting parties face, and in any event should consider, when they decide to draft a dispute resolution clause for an international contract. Those who wish immediate access to suggested language may turn directly to the Appendices. Those who wish to understand the analysis that leads to the suggested language should read the text."--Publisher's website.
Author: Sigvard Jarvin
Publisher: Kluwer Law International B.V.
ISBN: 9041185887
Category : Law
Languages : en
Pages : 634
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Book Description
International arbitration of business disputes continues to rise dramatically. New people entering the international arbitration community on all continents require a systematic guide to avoid a mere trial-and-error approach. This book, first of its kind, with numerous practical examples of the drafting of documents for each step of an international arbitration proceeding, under different arbitration rules and in different countries, allows actual ready-to-adapt forms to be located quickly for any issue likely to arise and clearly illustrates the different drafting styles used in practice. In one volume, in a single place, scores of documents are provided, all originating from real cases. A brief sample includes inter aliathe following: • request for arbitration; • answer/counterclaim; • claimant’s reply to counterclaim; • terms of reference; • rules of procedure; • timetable for submissions; • procedural orders; • written pleadings/statement of claim/defence; • witness statements/depositions/affidavits; • requests/orders for the production of documents/discovery; • requests/orders on interim measures/security for costs; • hearings; • opening statement/closing statement; • submissions on costs; • awards/interim/partial/final/by consent; and • requests/decisions on correction and interpretation of awards. Explanatory comments on more complex forms help to raise the readers’ awareness on a specific issue or discussion. Emphasis throughout is on procedural aspects. No other book makes it so easy to find all the information necessary to prepare a case or take a decision in the context of international commercial arbitration. These forms will be of immeasurable value to corporate counsel, management in instructing outside counsel, practitioners dealing with international arbitration, lawyers, arbitrators, members’ organizations in industry and commerce, arbitration centres (especially newer ones in emerging markets), academic libraries and bar associations.
Author: Maximilian Pika
Publisher: Kluwer Law International B.V.
ISBN: 9403512652
Category : Law
Languages : en
Pages : 700
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Book Description
The specialization and financial demand of global business render international transactions inherently multilateral and thus best effected through arbitration agreements. However, it often happens that – for various reasons, such as a debtor’s failure to pay damages ordered by an arbitral tribunal – third parties who did not consent to the original arbitration enter the scene. This is the first book to examine the binding effects of international commercial arbitral awards in follow-up disputes against third parties. It comprehensively analyses arbitral awards’ third-party effects under national arbitration laws, the New York Convention and private international law. Moreover, it proposes solutions under transnational law before both courts and arbitral tribunals. Applying a continuously comparative methodology that refers to specific statutory, jurisprudential and scholarly sources, this book explores the nature and implications of such aspects of third-party involvement as the following: the foundations of the doctrine of res judicata and its intrinsic connection to other tools of forum coordination; the distinction between res judicata before courts on the one hand and arbitral tribunals on the other; the application of non-mutual preclusion in favour of third parties; the potential for arbitral awards to constitute a fact in follow-up disputes; a comparison of rules and uncertainties on awards’ third-party effects under various national arbitration acts; preclusion agreements; the arbitration agreement’s scope; and judgments’ third-party effects as a shift of the participatory burden. For civil law, the author focuses on France and Switzerland (as predominant arbitral seats) and on Germany (as a Model Law example). Among common-law countries, he concentrates on England and Wales and on the United States. Statutory sources (with specific wording), leading cases and summaries of the most important scholarly discussions are all invoked. With its clear guidelines for matters currently not addressed in previous publications and likely to be raised in specific cases, this book will prove to be of immeasurable value for arbitration practitioners and academics in any jurisdiction. Business parties that seek to prevent contradicting decisions in multilateral transactions will appreciate the practically feasible alternatives it presents in the event of follow-up disputes involving third parties.
Author: Gary B. Born
Publisher: Kluwer Law International B.V.
ISBN: 9041154159
Category : Law
Languages : en
Pages : 5391
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Book Description
The second edition of Gary Born's International Commercial Arbitration is an authoritative 4,408 page treatise, in three volumes, providing the most comprehensive commentary and analysis, on all aspects of the international commercial arbitration process, that is available. The first edition of International Commercial Arbitration is widely acknowledged as the preeminent commentary in the field. It was awarded the 2011 Certificate of Merit by the American Society of International Law and was voted the International Dispute Resolution Book of the Year by the Oil, Gas, Mining and Infrastructure Dispute Management list serve in 2010. The first edition has been extensively cited in national court decisions and arbitral awards around the world. The treatise comprehensively examines the law and practice of contemporary international commercial arbitration, thoroughly explicating all relevant international conventions, national arbitration statutes and institutional arbitration rules. It focuses on both international instruments (particularly the New York Convention) and national law provisions in all leading jurisdictions (including the UNCITRAL Model Law on International Commercial Arbitration). Practitioners, academics, clients, institutions and other users of international commercial arbitration will find clear and authoritative guidance in this work. The second edition of International Commercial Arbitration has been extensively revised, expanded and updated, to include all material legislative, judicial and arbitral authorities in the field of international arbitration prior to January 2014. It also includes expanded treatment of annulment, recognition of awards, counsel ethics, arbitrator independence and impartiality and applicable law. Overview of volumes: Volume I, covering International Arbitration Agreements,provides a comprehensive discussion of international commercial arbitration agreements. It includes chapters dealing with the legal framework for enforcing international arbitration agreements; the separability presumption; choice of law; formation and validity; nonarbitrability; competence-competence and the allocation of jurisdictional competence; the effects of arbitration agreements; interpretation and non-signatory issues. Volume II, covering International Arbitration Procedures, provides a detailed discussion of international arbitral procedures. It includes chapters dealing with the legal framework for international arbitral proceedings; the selection, challenge and replacement of arbitrators; the rights and duties of international arbitrators; selection of the arbitral seat; arbitration procedures; disclosure and discovery; provisional measures; consolidation, joinder and intervention; choice of substantive law; confidentiality; and legal representation and standards of professional conduct. Volume III, dealing with International Arbitral Awards, provides a detailed discussion of the issues arising from international arbitration awards. It includes chapters covering the form and contents of awards; the correction, interpretation and supplementation of awards; the annulment and confirmation of awards; the recognition and enforcement of arbitral awards; and issues of preclusion, lis pendens and staredecisis.
Author: ANDREA MARCO. STEINGRUBER
Publisher:
ISBN: 9780198802990
Category :
Languages : en
Pages :
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Book Description
Author: Catharine Titi
Publisher: Oxford University Press
ISBN: 0192638270
Category : Law
Languages : en
Pages : 224
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Book Description
This book provides a systematic and comprehensive study of the legal concept of equity as it operates in contemporary international law. A principle with a long pedigree, equity has been present in legal thought and in municipal legal systems since antiquity. Introduced in international legal decisions through claims commissions and arbitral tribunals, equity became progressively part and parcel of the international law mainstream. From international cultural heritage law to the law on climate change, from maritime boundary delimitations to decisions on security for costs in investment arbitration, the relevance of equity is more far-reaching than has previously been acknowledged. In contrast with earlier studies on the topic, this book is informed by a body of judicial and arbitral case law that has never been so substantial and varied. It also draws extensively on the prolific case law of investment tribunals, gaining insights from a valuable source that is typically overlooked in public international law scholarship. As the importance of international law increases, covering continuously new domains, the value of equity increases with it. It is this new equity in the international law of the 21st century that this book explores.
