...Foundation of International Commercial Arbitrations Shaimaa Nasr Eldin ESLSCA Business School International Business law Foundation of the International Commercial Arbitrations Abstract. This paper analyzes the foundation of the international commercial arbitration, as a phenomenon widely used by most of the corporations among the world as a dispute settlement mechanism. You will see that it is one of many possible procedures for the settlement of disputes in regard to economic transactions. You will learn about the essential features of arbitration; that it is for the settlement of a dispute, consensual based on the agreement of the parties, private and not part of the State system of justice and leads to a final and binding decision that will be given execution by the court. This paper also identifies the selection by the parties of the place in which their international commercial arbitration is to take place will have a fundamental impact on the determination of those rights. Equally fundamental is the parties' selection of the law, both substantive and procedural, which will apply to the determination of those rights. This paper examines both of those choices, the forum and the law applicable to the arbitration. It also identifies the three sources of rules for international commercial arbitrations. Key words: Arbitration, applicable law, source of rules for international commercial arbitrations. What is "International Commercial Arbitration" ? This term is divided into three...
Words: 7768 - Pages: 32
...organizations. In 2001 the Brussels Convention of 1968 was replaced with the Brussels I Regulation. This has been the topic of many debates as it governs cross-border disputes in civil matter and commercial matters in the European Union (EU). The Brussels I Regulation establishes rules regarding international jurisdictions of courts in addition to enforcing foreign judgments. The regulation was revised in 2007 and publicized in the Heidelberg Report. “It became apparent that the question of possible inclusion of arbitration in the scope of the Regulation would be a controversial question during the revision process.” (Hauberg, 2014) Theoretically, if different proceedings meet for the purpose of validating the arbitration agreements, there may be different conclusions determining the validity because courts and the arbitral tribunal apply different laws to the question. This may “lead to parallel proceedings on the merits of the dispute. A court holding that no valid arbitration agreement exists will not refer the parties to...
Words: 2879 - Pages: 12
...of record of the landfill property as well as the permits and licenses. In May 1994, under SLP’s agreement to support the project, Metalclad started to construct the landfill. However, the state government and local bodies opposed the project on mandatory environmental safety requirements. As a result, the company was asked to apply for a municipal construction permit. The company applied for a permit and completed the landfill in 1995. But the Municipality of Guadalcazar refused Metalclad’s application for a permit and consequently the Governor of the State issued an ecological decree prohibiting the use of waste landfill. At the NAFTA Tribunal, the company argued that Mexico breached Articles and 1110 of NAFTA. The Tribunal decided that Mexico had breached obligations and awarded $16.7 million in damages to Metalclad in August 2000. Analysis International litigation may frustrate the parties by taking years to resolve, costing a great deal of money, and destroying the commercial relationship. For this reason, dispute resolution that does not take place in the courts of any country is a popular option for the settlement of commercial...
Words: 1031 - Pages: 5
...------------------------------------------------- Team 129R 5th National Law School International Arbitration Moot Court Competition, 2012 ------------------------------------------------- ------------------------------------------------- In the matter of an Arbitration at, Somali City, Democratic Republic of Calona under the Calona-Nolania Bilateral Investment Treaty ------------------------------------------------- Wayne Electronics.........................................................................................................Claimant v. Democratic Republic of Calona……........................................................................Respondent ------------------------------------------------- (Arb/Cas/12/35) ------------------------------------------------- ------------------------------------------------- Memorandum for Respondent ------------------------------------------------- Table of Contents Table of Abbreviations I Index of Authorities IV Statement of Jurisdiction XI Statement of Facts XII Questions Presented XV Summary of Pleadings XVI Arguments Advanced 1 I. The Tribunal Does Not Have Jurisdiction Over The Claims Brought Before It. 1 A. The undertaking of the Claimant does not amount to an investment. 1 B. The Tribunal does not have jurisdiction over contractual matters. 2 1. The Tribunal does not have jurisdiction over contractual disputes because of an exclusive dispute resolution clause...
Words: 14275 - Pages: 58
...Alternative dispute resolution (ADR) (also known as external dispute resolution in some countries, such as Australia[1]) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called "compulsory" mediation; attendance that is, not settlement at mediation). The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.[2] Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of the use of mediation to settle disputes.[3] Please read: a personal appeal from Wikipedia founder Jimmy Wales Read now Alternative dispute resolution From Wikipedia, the free...
Words: 6090 - Pages: 25
...India) (Accredited by NAAC with ‘A’ Grade) ------------------------------------------------- Study of arbitration, dispute resolution and mitigation practices in Indian Infrastructure Sector MBA – Infrastructure Management Batch 2013-15 Semester III Thesis Guide: Dr. Ajit Patwardhan Prepared by: Name | Roll No. | Jasjeet Singh Gill | 2013D02 | Subhashini N. | 2013D17 | Acknowledgement We consider it our privilege to express a few words of gratitude and respect to all those who contributed and wished for the successful completion of our project. We express our deep felt gratitude to Prof. (Dr.) Pratima Sheorey - Director, SCMHRD and college management for providing us with all facilities for making this endeavour possible. We acknowledge with a deep sense of gratitude, the constant help and guidance provided by our thesis guide and faculty Prof. (Dr.) Ajit Patwardhan at all stages of our project work. He has been an eternal source of inspiration and knowledge, without him, this thesis, was impossible. We would like to express our thanks in no less measure to Prof. Vasundhara Sen for her constant help. Our sincere thanks to our friends and all the people who directly or indirectly helped us, without which completing the course of this study would have been difficult. Certificate This is to certify that the project entitled “Study of arbitration, dispute resolution and mitigation practices in Indian Infrastructure Sector” is the bonafide work of...
Words: 40958 - Pages: 164
...INTERNATIONAL COMMERCIAL ARBITRATION 5.9 Electronic Arbitration ii Dispute Settlement NOTE The Course on Dispute Settlement in International Trade, Investment and Intellectual Property consists of forty modules. This module has been prepared by Mr. O. Cachard at the request of the United Nations Conference on Trade and Development (UNCTAD). The views and opinions expressed in this module are those of the author and not necessarily those of the United Nations, WTO, WIPO, ICSID, UNCITRAL or the Advisory Centre on WTO Law. The designations employed and the presentation of the material do not imply an expression of any opinion whatsoever on the part of the United Nations concerning the legal status of any country, territory, city or areas or of its authorities, or concerning the delimitation of its frontiers or boundaries. In quotations from the official documents and the jurisprudence of international organizations and tribunals countries are designated as reported. The United Nations holds copyright to this document. The course is also available in electronic format on the UNCTAD website (www.unctad.org). Copies may be downloaded free of charge on the understanding that they will be used for teaching or study and not for a commercial purpose. Appropriate acknowledgement of the source is requested. UNCTAD/EDM/Misc.232/Add.20 Copyright © United Nations, 2003 All rights reserved 5.9 Electronic Arbitration iii TABLE OF CONTENTS Note What you will learn 1...
Words: 25410 - Pages: 102
...International Arbitration Name of Student Name of Instructor Name of Institution Date Submitted OUTLINE 1. Part One: Questions i. Question 1 ii. Question 2 iii. Question 3 iv. Question 4 2. Part Two: Counsel’s Memorial i. Introduction ii. Statement of facts iii. Statement of purpose iv. Arguments v. Bibliography International Arbitration Part 1 Question 1: Importance of Severability in Arbitration Severability is a term found in contract agreements that permits individuals or parties to leave out a component in an agreement which is perceived inappropriate or impossible to enforce. Severability is important since it will facilitate the other components to remain valid and hence to be enforced effectively. It is contained in arbitration law and it is a significant clause that defines the validity of any given contract. It is also referred to as saving phrase or clause in some literature. In this case, a contract will remain valid even after a portion of the contract is denounced later as invalid. This is a very important principle since it shows the motives of both parties when unenforceable clauses have been imposed on the contract. Provision of the said clause will be subjected to modifications in order to reflect the motives of the parties involved. As a result, the remaining clauses will proceed normally without any hindrances. It is important to note that severability clause is very crucial in any...
Words: 4111 - Pages: 17
...CHAPTER 1 1.0 INTRODUCTION Concern over cost and delays in litigation procedures together with increasing globalization have led to more flexible means of resolving disputes which provide alternatives to court-based litigation governed by the law and procedure of a particular state or country. Disputes are generally an inevitable part of human interaction; they may be domestic, international, civil, commercial or economic in nature. Litigation has been the traditional method of resolving disputes, which may arise as a result of default by a party. Overtime, the process of litigation has become more and more time consuming, expensive and cumbersome and increase in the number of cases in courts have led to congestion and delay in their resolution. Some Disputes are sensitive and confidential in nature and disputants may prefer settlement in private to one in public glare of court. In addition, the complexity of court litigation tends often times towards increase in costs which disputants are naturally anxious to reduce. On the other hand, there may be claims involving small sums, which may not be worth the cost of litigation. All these have led to the development of alternative methods of resolving disputes. 1.2 ALTERNATIVE DISPUTE RESOLUTION METHODS The term “Alternative Dispute Resolution” (ADR), is used generally to describe the methods and procedures used in resolving disputes either as alternatives to the traditional...
Words: 5840 - Pages: 24
...indistinguishable in any way that would justify its inconsistent tax treatment because of the marketing activities and advertising strategies. Respondent argues that not all expenditures for ordinary business advertising are deductible under section 162. Another fact is that Kuwait terminated the concession enjoyed by Aminoil to explore for and exploit certain natural resources in a Kuwaiti frontier area known as the Neutral Zone and expropriated certain of Aminoil's assets in Kuwait. Aminoil and Kuwait entered into an agreement to arbitrate the resulting dispute. The tribunal made an award to Aminoil in the amount of $179,750,764. Kuwait honored the decision of the tribunal and paid Aminoil the award on July 1, 1982. For purposes of taking the award into account for Federal income tax purposes, petitioner made allocations based on the methodology of the tribunal. Petitioner treated $55,147,935, the amount described by the tribunal as the “level of inflation” adjustment, as an amount realized on the sale or other disposition of the concession. Respondent does not agree with petitioner that the “level of inflation” adjustment is an amount realized on the sale or other disposition of the concession. Respondent believes that the “level of inflation” adjustment is ordinary income in the nature of interest. HOLDINGS: The litigated expenses are ordinary...
Words: 569 - Pages: 3
...them, examine the role of employee voice, trade union involvement and the role of the State and regulation of the industrial relations system. It will consider the impact of the agreements upon both employees and outcomes achieved by businesses and will make the argument that the most efficient and productive form of workplace arrangements for business are collective agreements. Collective Agreements Collective agreements are formal contracts that are negotiated between an employer and a group of employees that stipulate the terms and conditions of employment. This type of agreement exists in a more centralised industrial relations system, and this system is based upon compulsory conciliation and arbitration, a system that has been established since the Conciliation and Arbitration Act of 1904. Collective agreements exist in a pluralist work relations environment. The pluralist theory identifies that there are different sources of authority and loyalty within organisations and that these sources may have differences of interest. Some interests may be in common between the employer and employees, but where there is a perception of inequality conflict can inevitably arise (Loudoun, et al., 2009). Collective Agreements recognise employee representation (trade unions) in collective bargaining which...
Words: 1959 - Pages: 8
...Role of International Organization in Trade Contents Role of International Organization in Trade 2 Introduction 3 1- European Union 3 Introduction 3 European Union law 4 Role of European Union in international trade 5 European Union and the Maldives 6 2- Internal Chamber of Commerce (ICC) 6 Introduction 6 • Arbitration: 6 • Pre-arbitral Referee: 7 • Appointing Authority 7 • ICC ADR 7 • ICC Dispute Board Rules 7 • ICC International Centre for Expertise 7 • ICC International Centre for Expertise: 8 Role of International Chamber of Commerce in International Trade 8 Maldives and International Chamber of Commerce 8 3- United Nations Commission on International Trade Law (UNICITRAL) 8 The Role and Mandate of UNCITRAL 9 Legislative and Non-Legislative texts 9 Legislative text 9 Coordinating the work of other similar organizations 10 UNCITRAL role in International Trade 10 UNCITRA and Maldives 10 4- Organization for Economic Corporation and Development (OECD) 11 AIM 11 The work of the OECD 11 OECD and International Trade 11 • OECD Guidelines for Multinational Enterprises 12 OECD and Maldives 12 References 13 Role of International Organization in Trade Introduction Every nation in the world participates in international trade to some extent. And practically every product is either traded or relies on components from international suppliers. Trade is not just about physical goods, though. Knowledge and experience can be bought and sold internationally...
Words: 3330 - Pages: 14
... CHAPTER 3 Disputes involving private parties International disputes must either be heard • • DISPUTE RESOLUTION in a domestic system using domestic law (with the consent of both parties) unless the dispute is between 2 states (then an international tribunal/court can be convened). The law of the forum, where the dispute is being heard, will supply the procedural rules that will allow it to review the substantive matter (legal issues at stake). Disputes involving a private individual or company usually end up in a domestic court of a state. 3-1 © 2009 Pearson Education, Inc publishing as Prentice Hall Disputes between states 3-2 © 2009 Pearson Education, Inc publishing as Prentice Hall Are taken to an international tribunal, such as the ICJ (International Court of Justice) or the dispute resolution panel of the World Trade Organization (if both states are members) and the matter involves a trade in goods issue. The International Criminal Court (ICC) is a court of last resort which tries persons accused of the most serious crimes against humanity (crimes such as genocide). Settlement of Disputes in International Tribunals International Court of Justice International Criminal Court World Trade Organization Dispute Settlement Procedures 3-3 © 2009 Pearson Education, Inc publishing as Prentice Hall 4 © 2009 Pearson Education, Inc publishing as Prentice Hall 1 3/7/2016 ICJ Jurisdiction ...
Words: 3005 - Pages: 13
...Alternative Dispute Resolution Analysis Paper University Of Phoenix LAW / 531 Date: 10/05/2015 MEMORANDUM. TO: Singh and Jessica FROM: Karandeep Singh RE: Disagreement concerning Singh and Jessica in the corporation of an outfitting store. DATE: 10/03/2015. FACTS: Singh and Jessica are trade partners of an outfit and merchandising store, and they entered into a formal contract. Jessica had to reduce her working day to take care for her newborn therefore reacting to her decision Singh hired a well-educated employee and reduced Jessica’s turnover without even informing her. In obstruction, Jessica sealed the corporation account with Singh, and she opened a different sole signatory account for her. I think the particular instance can cause a State Tribunal though the legal phase for the case will originate with small claims court. If Singh and Jessica will not able to do a settlement in small claims court, then the case can proceed to the states appeals court and can lead all the way to Supreme Court. Although, most claim filed in small claims courts come to a settlement, but it is difficult to solve the issues in the court system in order to decrease the cost and a long trial mediation and most commonly responsive solutions for parties. I am listing the few available options solving disputes between business partners, shareholders of business entities, and managing members. Litigation Litigation is the process...
Words: 794 - Pages: 4
...breaking judgment regarding the future implications of foreign award and foreign arbitration vis a vis jurisdiction of Indian Courts | | |was passed on 6 September 2012 by the Constitutional Bench of the Hon'ble Supreme Court comprising Hon'ble Chief Justice J.N. Patel, Justice | | |Surinder Singh Nijjar, Justice D.K. Jain, Justice Mrs. Ranjana Desai, Justice Jagdish Singh Khehar. This landmark judgment passed in Civil | | |Appeal No. 7019 of 2005 (Bharat Aluminium Co. vs. Kaiser Aluminium Technical Service, Inc.) along with 7 other Appeals lays down a new | | |foundation in India in respect of foreign arbitrations and foreign awards passed in respect thereof. | | |The Indian Arbitration Act, 1996 ("said Act") is divided into four Parts with Part I dealing with arbitration held in India and Part II | | |dealing with foreign awards. For the purposes of the above mentioned landmark judgment passed on 6 September 2012, we are concerned with Part | | |I and Part II of the said Act. | | |Previous decisions of the Supreme Court: | | |Section 2(2) of Part I of the said Act provides that "this Part shall apply where the place of arbitration is in India", It is pertinent to | | |note that Part I of the said Act contains...
Words: 1368 - Pages: 6
