Conflict Of Laws And Arbitral Discretion

Author : Benjamin Hayward
Publisher : Unknown
Page : 352 pages
File Size : 47,9 Mb
Release : 2017-01-05
Category : Electronic
ISBN : 0198787448

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Conflict of Laws and Arbitral Discretion by Benjamin Hayward Pdf

Arbitration is the dispute resolution method of choice in international commerce, but it rests on a complex legal foundation. In many international commercial contracts, the parties will choose the law governing any future disputes. However, where the parties do not choose a governing law, theprevailing approach in arbitration is to afford arbitrators broad and largely unfettered discretion to choose the law considered most appropriate or most applicable. The uncertainty resulting from this discretion potentially affects the parties' rights and obligations, the performance of theircontract, the presentation of their cases, and negotiations undertaken to settle their disputes.In this text, Dr Benjamin Hayward critically reviews the prevailing approach to the conflict of laws in international commercial arbitration. The text adopts a focused and detail-oriented analysis - being based on a study of more than 130 sets of arbitral laws and rules from around the world, anddrawing heavily on arbitral case law. Nevertheless, it remains both practical and accessible, taking as its focus the needs and expectations of commercial parties, who are the ultimate users of international commercial arbitration.This text identifies the difficulties that result from resolving conflicts of laws through broad and unconstrained arbitral discretions. It establishes that a bright-line test would be a preferable way to resolve arbitral conflicts of laws. Specifically, it recommends a modified Art. 4 RomeConvention rule as the ideal basis for law reform in this area of arbitral procedure.

Author : Anna M. Lohmann
Publisher : Nomos Verlag
Page : 196 pages
File Size : 41,9 Mb
Release : 2022-02-28
Category : Law
ISBN : 9783748928560

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The Arbitrator's Discretion in Conflict of Laws Matters by Anna M. Lohmann Pdf

Internationale Schiedsverfahren und CISG bilden eine neutrale Plattform für internationale Handelsstreitigkeiten. Allerdings ist unklar, ob Schiedsrichter das CISG überhaupt anwenden müssen. Diese Arbeit untersucht zunächst die Rechtsnatur der Anwendungsnormen des CISG, mit dem Ergebnis, dass es sich um Internationales Privatrecht handelt. Dies führt zu der grundsätzlichen Frage nach der Bindung von Schiedsrichtern an IPR, in deren Prüfung völker- und europarechtliche sowie rechtspraktische Aspekte einbezogen werden. Eine Bindung wird abgelehnt. Schließlich wird ergänzend ein Blick auf die Bindungswirkung von materiellem Recht in Schiedsverfahren geworfen.

Author : Ian A. Laird,Sabahi, Frédéric G. Sourgens,Todd J. Weiler,
Publisher : Juris Publishing, Inc.
Page : 417 pages
File Size : 55,7 Mb
Release : 2015-03-01
Category : Conflict of laws
ISBN : 9781937518691

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Investment Treaty Arbitration and International Law - Volume 8 by Ian A. Laird,Sabahi, Frédéric G. Sourgens,Todd J. Weiler, Pdf

This volume contains the papers and proceedings of the eighth annual Juris Conference addressing new developments in investment treaty arbitration with a focus on the fundamental issues that have drawn some of the greatest controversies in the jurisprudence over the past few years. The four topics addressed in this book include: Challenges to Arbitrators: Should the Challenge Process Be Overhauled?New Developments in Definition of "Investment": What Is the Role of the Concept of "Property" in Investment Arbitration?Is Investment Treaty Arbitration a Mechanism to Second-guess Governments' Exercise of Administrative Discretion: Public Law or Lex Investoria?Awarding Damages: Proportionality, Contributory Fault, and Arbitral Tribunals' Discretion or Toss of a Coin? Contributors: Meriam N. Alrashid Paul Barker Julie Bédard Alexander Bĕlohlávek Amal Bouchenaki Mark N. Bravin Kate Brown de Vejar Julián Cárdenas Garcia Tina Cicchetti Robert A. DeRise Paolo Di Rosa James Egerton-Vernon Timothy L. Foden George K. Foster John Y. Gotanda George Kahale III Jonathan S. Kallmer Joshua Karton Matthew S. Kronby Pablo D. López Zadicoff Juan Felipe Merizalde Urdaneta Craig Miles Caline Mouawad Timothy G. Nelson Michael Nolan Eloïse Obadia Sirshar Qureshi Charles E. Roh Charles B. Rosenberg Margarita R. Sánchez Matthew D. Slater Fernando A. Tupa Janet M. Whittaker

Author : William W. Park
Publisher : OUP Oxford
Page : 1096 pages
File Size : 41,8 Mb
Release : 2012-09-20
Category : Law
ISBN : 9780191634819

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Arbitration of International Business Disputes by William W. Park Pdf

Arbitration of International Business Disputes 2nd edition is a fully revised and updated anthology of essays by Rusty Park, a leading scholar in international arbitration and a sought-after arbitrator for both commercial and investment treaty cases. This collection focuses on controversial questions in arbitration of trade, financial, and investment disputes. The essays address some of the most interesting topics in cross-border business dispute resolution, many of which have endured over several decades and remain subject to radically different views. Examples include the proper role of judicial review, the allocation of jurisdictional tasks, evolution of arbitration's statutory and treaty framework, free trade and bilateral investment agreements, and the balance between fixed rules and arbitral discretion. The book is structured around three themes: arbitration's legal framework; the conduct of arbitral proceedings; and a comparison of arbitration in specific fields such as finance, intellectual property, and taxation. In each of these areas, analysis includes the tensions between fairness and efficiency, and the accurate application of substantive law as well as the implications of mandatory procedural norms. Augmented by more than a dozen new contributions and a revised introduction, this 2nd edition retains all of its earlier practical and scholarly relevance, and includes a Foreword by V. V. (Johnny) Veeder QC.

Author : Jean Gabriel Castel
Publisher : Unknown
Page : 840 pages
File Size : 50,9 Mb
Release : 1975
Category : Conflict of laws
ISBN : UCAL:B4279685

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Canadian Conflict of Laws by Jean Gabriel Castel Pdf

Author : Andrew S. Bell
Publisher : Oxford Private International L
Page : 402 pages
File Size : 54,6 Mb
Release : 2003
Category : Law
ISBN : 0199248184

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Forum Shopping and Venue in Transnational Litigation by Andrew S. Bell Pdf

The rules by which a venue is selected and settled upon for the resolution of any given transnational dispute have fostered a complex, fascinating and burgeoning body of law of great commercial significance. As courts and legislatures seek to fashion sophisticated yet practicaljurisdictional responses to this issue, practitioners strive to maximize their clients' prospects of success by securing their own preferred venue. For so long as different forums yield the prospect of different outcomes in the resolution of any given dispute, litigation about where to litigate isinevitable.Forum shopping is the province of plaintiffs and defendants alike. This book examines the fascinating competition to win the battle for venue in transnational litigation.It first identifies and analyses the pre-conditions and incentives for forum shopping. These serve to explain not only the frequent intensity of interlocutory litigation relating to questions of venue but also the reason why much transnational litigation settles once the issue of venue is resolved,in turn underlining the practical significance of the subject. The guiding principle of the 'natural forum' - the common law's conceptual response to disputed questions of venue - is subjected to detailed analysis and compared with the more orderly response of jurisdiction-regulating conventions,most successfully effected in EU Regulation 44/2001 and its progenitor, the Brussels Convention. Then the various techniques of what can be called 'reverse forum shopping' including the evolving law relating to anti-suit injunctions and its interplay with the concept of international judicialcomity are considered in detail. Finally, the book examines the role of, and the law relating to, jurisdiction and arbitration agreements in transnational litigation, including the manifold techniques by which parties seek to (and frequently do) extricate themselves from these forum-selectionarrangements.

Author : Annabelle Möckesch
Publisher : Oxford International Arbitrati
Page : 360 pages
File Size : 54,6 Mb
Release : 2017
Category : Law
ISBN : 0198795866

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Attorney-client Privilege in International Arbitration by Annabelle Möckesch Pdf

"This book is based on a dissertation that was generously supported by the International Max Planck Research School on successful dispute resolution in International law, a research school organized by Heidelberg University and the Max Planck Institute for comparative public law and International law in Heidelberg."

Author : Yuliya Chernykh
Publisher : BRILL
Page : 629 pages
File Size : 52,7 Mb
Release : 2022-01-17
Category : Law
ISBN : 9789004414709

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Contract Interpretation in Investment Treaty Arbitration by Yuliya Chernykh Pdf

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 : Stefan Kröll,Andrea Bjorklund,Franco Ferrari
Publisher : Cambridge University Press
Page : 3006 pages
File Size : 49,8 Mb
Release : 2023-03-02
Category : Law
ISBN : 9781009302388

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Cambridge Compendium of International Commercial and Investment Arbitration by Stefan Kröll,Andrea Bjorklund,Franco Ferrari Pdf

The Compendium, like an encyclopedia, contains entries for most of the foundational principles and concepts underlying arbitration. Each entry takes a holistic view of international arbitration, as they tackle core concepts from both a commercial and an investment arbitration perspective, focusing on the fundamental issues underlying the various topics rather than on the solutions adopted in any particular jurisdiction, thus making the Compendium a truly cross-border, transnational resource. This innovative approach will allow readers to identify the commonalities as well as the differences between commercial and investment arbitration, whether and where cross-fertilization has taken place and what consequences it can have. This approach allows the Compendium to be a tool in promoting the creation of a culture of international arbitration that considers commercial arbitration and investment arbitration as part of a whole but with certain distinct features particular to each.

Author : Nathalie Najjar
Publisher : BRILL
Page : 1340 pages
File Size : 41,6 Mb
Release : 2017-10-30
Category : Law
ISBN : 9789004357488

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Arbitration and International Trade in the Arab Countries by Nathalie Najjar Pdf

Arbitration and International Trade in the Arab Countries examines international trade arbitration in the MENA region and analyses legal sources, decisions and practices through the prism of freedom and safety requirements. The work is an essential guide to the body of arbitration law at both the practical and theoretical levels.

Author : Peter R. Barnett
Publisher : Oxford Private International L
Page : 432 pages
File Size : 42,6 Mb
Release : 2001
Category : Law
ISBN : 0199243395

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Res Judicata, Estoppel, and Foreign Judgments by Peter R. Barnett Pdf

This clear and original book provides a much-needed analysis of the doctrines of res judicata and abuse of process as applied to foreign judgments recognized in England for their preclusive effect. In particular, it examines the four preclusive pleas which are encountered in practice, namely:(i) cause of action estoppel; (ii) issue estoppel; (iii) former recovery per section 34 of the Civil Jurisdiction and Judgments Act 1982; and (iv) the rule in Henderson v Henderson. So far as foreign judgments are concerned, the book examines separately the preclusive effects of foreign judgmentsrecognized according to the English common law and related statutory rules, and foreign judgments which the English courts are obliged to recognize under the Brussels and Lugano Conventions. It also includes a discussion of the preclusive effects of judgments recognized under the proposed HagueConvention on Jurisdiction and Foreign Judgments in civil and commercial matters.Although the complex and technical doctrines of res judicata and abuse of process are well known in the context of domestic judicial decisions, little has hitherto been written analysing how these doctrines apply when the judgment emanates from a foreign court. It is not surprising, therefore, thatthis area of law has been frequently confused and mis-applied. And yet the recognition of foreign judgments for preclusive purposes is an increasingly important area for practitioners and academics - especially for those interested in international commercial litigation, and not least given theimportant treaty developments that are occurring. For these reasons, this book is a very timely work. Written with a practitioner focus, it includes extensive references to res judicata authorities in the United Kingdom, Australia and Canada.

Author : Frederick Alexander Mann
Publisher : Unknown
Page : 232 pages
File Size : 52,8 Mb
Release : 1986
Category : Law
ISBN : UOM:39015011336305

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Foreign Affairs in English Courts by Frederick Alexander Mann Pdf

Considering the aspects of foreign affairs which arise in English court cases, this book treats questions regarding the relationship between international and domestic law, the sovereignty of the Crown, and the relationship between the Crown and the courts.

Author : Franco Ferrari (juriste).),Stefan M.. Kröll
Publisher : Unknown
Page : 800 pages
File Size : 44,6 Mb
Release : 2019
Category : Arbitration agreements, Commercial
ISBN : 1944825312

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Conflict of Laws in International Commercial Arbitration by Franco Ferrari (juriste).),Stefan M.. Kröll Pdf

La 4e de couverture indique : "It is often asserted that conlfict of laws rules are not as relevant in the context of international arbitration as they are in that of judicial proceddings. Acording to some commentators, it is, inter alia, to avoid the complicated conflict of laws methodology that parties opt for international arbitration, since they assume that arbitral tribunals do not apply conflict of laws rules. As recent case law from a number of jurisdictions shows, the assumtions behind these assertions is incorrect. This book addresses some of the most important conflicts of laws problems that may arise in connection with the various stages of arbitral proceddings."

Author : Jan Paulsson
Publisher : OUP Oxford
Page : 331 pages
File Size : 41,5 Mb
Release : 2013-11-21
Category : Law
ISBN : 9780191620935

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The Idea of Arbitration by Jan Paulsson Pdf

What is arbitration? This volume provides a novel theoretical examination of the concept of arbitration, attempting to answer fundamental questions which have rarely been addressed systematically in English. It exlores the place of arbitration in the legal process, offering a challenging, yet accessible overview of the field and its theoretical underpinnings and contending that arbitration is important enough to be understood in its own terms, as a sui generis feature of social life. Why do individuals, companies, and States choose to go to arbitration rather than through litigation? Arbitraton can offer increased flexibility and confidentiality, and provides the parties with the opportunity to select the arbitrators. But what makes them want to confide in an arbitrator rather than use the more traditional legal mechanisms for settling disputes? This volume explores what the parties can expect of an arbitrator, and whether and how the conduct of an arbitrator might be questioned and under what authority. It examines the ethical challenges to arbitral authority and and its moral hazards, evaluating the promises and dangers of self-contained systems of decision-making and compliance.

Author : United Nations Commission on International Trade Law
Publisher : Unknown
Page : 44 pages
File Size : 42,6 Mb
Release : 1996
Category : Law
ISBN : UOM:35112202294957

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UNCITRAL Notes on Organizing Arbitral Proceedings by United Nations Commission on International Trade Law Pdf