• Journal of Arbitration Studies
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• v.20 no.1
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• pp.41-65
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• 2010

It is a matter for debate that which types of dispute may be resolved by arbitration. This problem is concerning the arbitrability of the subject-matter of a dispute. National laws establish the domain of arbitration. Each state decides which matters may or may not be resolved by arbitration in accordance with its own political, social and economic policy. In response to complexity and diversity of a social phenomenon, the dispute also is various, therefore can not be settled efficiently by means of court adjudication to which applies a law strictly. To overcome such problems we are going to seek to make use of arbitration. According to Korean Arbitration Act Art. 3 (1), any dispute in private laws would be the object of arbitral proceedings. For the promotion of fair and free competition, it is increasingly wide-ranging antitrust legislation across the world. It is matter for debate what can an arbitral tribunal do when confronted with an allegation that the contract under which the arbitration is brought is itself an illegal restraint of trade or in some other way a breach of antitrust law. The underlying question is how to accommodate the conflicting congressional policies favoring resolution of private controversies by arbitration and encouraging private suits to protect the public interests served by the antitrust laws. It is necessary to inquire into the arbitrability of antitrust issues on case-by-case basis, because the types of them are quite diverse. If antitrust issues are the dispute in private laws and the contracting parties agreed to submit to arbitration disputes which have arisen or which may arise between them in the antitrust issues, the antitrust disputes are arbitrable. Not only international antitrust disputes but also domestic antitrust disputes are capable of being resolved by arbitration. When the public interests in the enforcement of antitrust legislation are asserted, it is possible to justify the annulment or the refusal of the recognition or the enforcement of an arbitral award that ignores public policy as a matter of it.

• Journal of Arbitration Studies
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• v.19 no.3
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• pp.43-66
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• 2009

This paper investigates what are the types and legal grounds for interim measures in the U.S. arbitration practices. The statutory ground for the interim measures is the Revised Uniform Arbitration Act. Another ground, probably the most important, is the parties' own intentions to adopt the interim measures in their arbitration proceeding. Most typical interim measures in arbitration include preliminary injuction, attachment and antisuit injunction. In the U.S ex parte motion for interim measure is rarely allowed while the Revised UNCITRAL Model Law specified an ex parte interim measure. In launching the interim measures, the US courts have demanded several requirements including imparability, probability of success and passing of the balance test. In general, the U.S. courts have properly interfered with the procedural issues in arbitration unreined but leaving the substantive issues untouched. It is believed that such interference has helped to enhance the credibility in arbitration with respect to fairness and justice.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.38
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• pp.155-180
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• 2008

The purpose of this paper is to examine the major elements of Arbitration Clause in international investment contracts and to help the investor, especially foreign investors, considering these elements when they draft the contracts. First of all, to describe the extent of the arbitrable issues broadly is very important by using the phrase such as "disputes in connection with". Furthermore in order to be enforceable, the issues must be a subject-matter to be submitted to arbitration in accordance with the laws of the place of arbitration and the law application to the merits of the disputes (N.Y. Convention, Art. II). Second, the appointment of the arbitrators usually shall be based on the principle of freedom of contract. If the parties do not agree on the appointment, it is decided in accordance with the arbitration rules of the institution by the tribunal. Third, the procedural rules of the arbitration are the arbitration rules of the arbitration institution in case of institution arbitration, unless otherwise agreed. Forth, what is the most importance element of Arbitration Clause is the place of arbitration. In this case, also the principle of freedom of contract has priority. Unless otherwise agreed, Washington is the place of arbitration in case of ICSID Arbitration, but in case of ICC Arbitration, neutral third country may be the place of arbitration. However in case of ad hoc arbitration, both parties should indicate the place. If not, the whole arbitration may be paralysed by an uncooperative party. Besides the major elements, I examined the relation between the arbitration clause and award enforcement in terms of sovereign immunity. The enforcement of awards in the field of state contracts many encounter the problem of the sovereign immunity, which means that the State itself or the State enterprise is the contract partner. To avoid the this problems, it is advisable for the parties insert the clause such as ICSID Model Clause XIX.

• Journal of Arbitration Studies
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• v.31 no.3
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• pp.25-42
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• 2021

Arbitration is an alternative dispute resolution mechanism based on the parties' agreement to resolve any disputes parties may have by arbitration rather than litigation in court. Parties' consent to arbitrate, which must be manifest in the parties' arbitration clause or agreement, is the foundation for arbitration; thus, the language of an arbitration agreement is often of utmost importance in determining the intent of the parties regarding many aspects of arbitration proceedings, such as, the scope of arbitral proceedings, arbitral seat, and authority of arbitral tribunals, among others. Recently, the U.S. Supreme Court held in Lamps Plus, Inc. v. Varela (2019) that ambiguity in arbitration agreement as to availability of class arbitration should be resolved in favor of individual arbitration, and therefore, class arbitration would be precluded. Such holding was met with criticism by four separate dissenting opinions, in which the dissenting Justices have disagreed with the majority's interpretation of the arbitration agreement at issue, as well as, its rejection of application of state law in resolving contractual ambiguity. This article analyzes the Supreme Court's decision and reviews the Court's approach in construction of the arbitration agreement. Nevertheless, because the Supreme Court declined to provide clear guidelines as to precisely what contractual basis is required to permit class arbitration, either silence or ambiguity in arbitration agreements will be resolved by disallowing class arbitration.

• Journal of Arbitration Studies
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• v.18 no.1
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• pp.97-119
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• 2008

The reluctance of Latin American countries to practice international arbitration is not a new topic in international law. This reluctance historically based on Calvo Doctrine provoked not only the absence of Latin American countries from the major international commercial arbitration conventions, but obsolete national arbitration legislation. Recently, however, these countries have undertaken major steps showing that the region is no longer reluctant to practice international commercial arbitration. Most Latin American countries have ratified the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention"), the 1965 Convention on the Settlement of Investment Disputes ("Washington Convention") and the 1975 Inter-American Convention on International Commercial Arbitration ("Panama Convention"). The majority of Latin American countries have also modified and adapted their national legislation on arbitration to the UNCITRAL model law. Even judiciary has been following this pro-arbitration. This article will focus on some of these factors provoking the acceptance of international commercial arbitration in Latin America to trace the common trends and characteristics in an attempt to understand better how international arbitration set on its place firmly. For this purpose we selected five countries, Brazil, Argentina, Chile, Mexico and Venezuela, to analyse legislations and jurisprudence. Latin America is ready to challenge any obstacles to promote arbitration as alternative methods of judicial resolution. There is an ever-increasing number of international arbitration in Latin America. Both practitioners and judiciary have shown desires to promote the resolution of disputes by arbitration and used the legal instruments to ensure that process interpreting and applying legislations for pro-arbitration. Even there remains Calvo Doctrine's culture in Latin America still now, it should be certain this culture will disappear from the conduct of international arbitration.

• Journal of Arbitration Studies
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• v.24 no.3
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• pp.33-46
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• 2014

Amiable composition is a means of dispute resolution based on the arbitrator's authority to base his decision on equity. Although this method has been used frequently in the last decades of the 20th Century, the number of the published awards by amiable compositeur arbitrators is getting lower and lower. The reason(s) for unpopularity of amiable composition should be sought in its very nature, in its relationships with other institutions such as arbitration in law, equity, ex aequo et bono arbitration, other means of dispute resolution and in its role in the development of the rules specific to international commerce. A brief look at the history of law shows that the concept of equity comes to the scene every time that the rigidity of the rules of law challenges the justice. This has been the case in the 20th Century with respect to international commercial law which was deprived of specific rules. The role of amiable composition has been to contribute to the development of the rules specific to international commerce. The progressive codification of such rules in the last decades is also owed to amiable composition, which has accomplished its mission in the evolution of these rules.

• Journal of Arbitration Studies
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• v.20 no.2
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• pp.131-149
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• 2010

Since the Arbitration Law of China took effect in 1995, arbitration has grown with the economy. At the end of 2009, there were 202 arbitration institutions in China. Among them, China International Economic and Trade Arbitration Commission(CIETAC) has adopted online arbitration and has settled internet domain name disputes since 2001. CIETAC Domain Name Dispute Resolution Center(DNDRC) has accumulated abundant experiences of online arbitration in the field of domain name disputes. Based on those experiences, on 1 May 2009, CIETAC implemented the CIETAC Online Arbitration Rules(Rules') to regulate the resolution of e-business disputes as well as other business disputes. With this background, this article aims to study the status quo, practices and issues of online arbitration conducted by CIETAC. For the purpose of the article, a general picture of online arbitration is outlined first, followed by introducing the steps of the online arbitration procedure. According to the 'Rules', the entire arbitration process is conducted using online communication methods which are cost-effective and efficient. To facilitate the development of online arbitration, legal barriers need to be removed. This article considers main legal issues of online arbitration in China and proposes amendment to Chinese Arbitration Law, in particular, the recognition of the validity of electronic arbitration agreements and awards.

• Journal of Arbitration Studies
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• v.28 no.2
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• pp.137-163
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• 2018

Efficiency in the arbitration proceedings and finality of arbitral awards have been key attractive features of arbitration. While finality of awards is due to the fact that there is no appeals mechanism in arbitration, other recourses that are available against arbitral awards threaten the integrity of finality of arbitral awards. This article examines some of these recourses, such as, setting aside of arbitral awards pursuant to the UNCITRAL Model Law, scrutiny of draft awards by arbitration institutions, and annulment proceedings of ICSID Convention awards and discusses the implications of these measures in relation to assuring finality of arbitral awards in international commercial and investment arbitration cases. In order to more effectively respect the disputing parties' autonomy in choosing arbitration, and also to give as much deference to arbitral tribunals' decisions and their discretion in reaching their decisions, it is proposed that an official appellate mechanism would be preferred over the undermining of finality of arbitral awards that have been taking place through the currently available exclusive recourses against arbitral awards.

• International Journal of Computer Science & Network Security
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• v.23 no.7
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• pp.32-38
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• 2023

This study deals with arbitration award via modern technical means; because e-Arbitration is deemed to be one of the most important substitute means for the settlement of disputes arising from electronic transactions. This type of arbitration is characterized by fast settlement of disputes, as well as fast enforcement of awards rendered thereon. The researcher seeks to indicate the content of the award, the conditions for rendering it, and to analyze the legal provisions related to its legal basis in the Saudi Law of Arbitration. This study shows that an arbitration award, rendered via modern technical means has a number of advantages, such as fast settlement, less cost, and keeping pace with modern technology, which is an aim of Saudi Arabia Vision 2030. The study also points out certain problems facing arbitration via technical means; however, the most important of which is the insufficiency of some legal rules associated with traditional arbitration, as contained in the Saudi Law of Arbitrator, which are incompatible with or applicable to an arbitration award which is rendered via modern means.

• Journal of Arbitration Studies
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• v.33 no.4
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• pp.37-67
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• 2023

Arbitration is a just and efficient method for resolving economic disputes. It adapts to the needs of economic development and is an important institution in today's society. Around the world, a tradition of resolving disputes through arbitration spontaneously developed in ancient times and gradually evolved into a legal system with the development of jurisprudence starting from the Middle Ages. In China, formal legislation on arbitration began in the modern era during the Republic of China period. However, the origins of arbitration as a method for resolving disputes can be traced back to ancient times, during the Qin and Han dynasties. The most significant modern arbitration legislation in China is the "Arbitration Law" enacted in 1995, which drew on the experiences of foreign arbitration laws. Despite this, there are still many areas in arbitration legislation that require improvement based on practical experiences. Currently, revisions to the Arbitration Law are underway, and historical experiences may offer valuable insights, assisting in better integrating the Arbitration Law with Chinese society. This article primarily focuses on the role and impact of the imported modern commercial arbitration system in China and how it can be harmonized with China's legal culture in the future.