Competence-competence and corruption have, for different reasons, been mainstays of international dispute resolution thought and practice for the longest time. In the last few years, their intersection has become increasingly important and problematic. These lectures seek to define the problem and to provide acceptable solutions where possible. They attempt to derive support from both a stringent dogmatic approach and pragmatic attention to real-life expectations and conduct. More so than in other areas of private international law, the intersection between the powers of the arbitrator and the illegality of the subject matter or the parties’ conduct poses a particular challenge. That challenge is to postulate proper solutions under the law, including principles of transnational or international law, to conduct which can take on a multiplicity of appearances owing to conflicting cultural understandings of what is and is not legal in commercial life. The statement that bribery and corruption offend transnational or international public policy does not relieve the arbitrator from the burden of scrutinizing that statement doctrinally and exploring its consequences in a period of ever-increasing globalization of economic activity and investment.
International Commercial Arbitration is an authoritative 4,250 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 Third Edition of International Commercial Arbitration has been comprehensively revised, expanded and updated, To include all legislative, judicial and arbitral authorities, and other materials in the field of international arbitration prior to June 2020. It also includes expanded treatment of annulment, recognition of awards, counsel ethics, arbitrator independence and impartiality and applicable law. The revised 4,250 page text contains references to more than 20,000 cases, awards and other authorities and will enhance the treatise’s position as the world’s leading work on international arbitration. The first and second editions of International Commercial Arbitration have been routinely relied on by courts and arbitral tribunals around the world ((including the highest courts of the United States, United Kingdom, Singapore, India, Hong Kong, New Zealand, Australia, the Netherlands and Canada) and international arbitral tribunals (including ICC, SIAC, LCIA, AAA, ICSID, SCC and PCA), e.g.: U.S. Supreme Court – GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 590 U.S. - (U.S. S.Ct. 2020); BG Group plc v. Republic of Argentina, 572 U.S. 25 (U.S. S.Ct. 2014); Canadian Supreme Court – Uber v. Heller, 2020 SCC 16 (Canadian S.Ct.); Yugraneft Corp. v. Rexx Mgt Corp., [2010] 1 R.C.S. 649, 661 (Canadian S.Ct.); U.K. Supreme Court – Jivraj v. Hashwani [2011] UKSC 40, ¶78 (U.K. S.Ct.); Dallah Real Estate & Tourism Holding Co. v. Ministry of Religious Affairs, Gov’t of Pakistan [2010] UKSC 46 (U.K. S.Ct.); Swiss Federal Tribunal – Judgment of 25 September 2014, DFT 5A_165/2014 (Swiss Fed. Trib.); Indian Supreme Court – Bharat Aluminium v. Kaiser Aluminium, C.A. No. 7019/2005, ¶¶138-39, 142, 148-49 (Indian S.Ct. 2012); Singapore Court of Appeal – Rakna Arakshaka Lanka Ltd v. Avant Garde Maritime Servs. Ltd, [2019] 2 SLR 131 (Singapore Ct. App.); PT Perusahaan Gas Negara (Persero) TBK v. CRW Joint Operation, [2015] SGCA 30 (Singapore Ct. App.); Larsen Oil & Gas Pte Ltd v. Petroprod Ltd, [2011] SGCA 21, ¶19 (Singapore Ct. App.); Australian Federal Court – Hancock Prospecting Pty Ltd v. Rinehart, [2017] FCAFC 170 (Australian Fed. Ct.); Hague Court of Appeal – Judgment of 18 February 2020, Case No. 200.197.079/01 (Hague Gerechtshof); Arbitral Tribunals – Lao Holdings NV v. Lao People's Democratic Republic I, Award in ICSID Case No. ARB(AF)/12/6, 6 August 2019; Gold Reserve Inc. v. Bolivarian Republic of Venezuela, Decision regarding the Claimant’s and the Respondent’s Requests for Corrections, ICSID Case No. ARB(AF)/09/1, 15 December 2014; Total SA v. The Argentine Republic, Decision on Stay of Enforcement of the Award, ICSID Case No. ARB/04/01, 4 December 2014; Millicom Int'l Operations B.V. v. Republic of Senegal, Decision on Jurisdiction of the Arbitral Tribunal, ICSID Case No. ARB/08/20, 16 July 2010; Lemire v. Ukraine, Dissenting Opinion of Jürgen Voss, ICSID Case No. ARB/06/18, 1 March 2011.
Volume 19 of the Congress Series contains the proceedings of ICCA's 2016 Mauritius Congress, the first ICCA Congress held in Africa. In this volume, renowned practitioners, scholars and jurists from the region and around the world explore the contribution of arbitration to the rule of law and economic development; the conformity of arbitration with international standards of due process and the rule of law; and the benefits and challenges of arbitration in Africa. Topical issues of interest for practitioners, academics and students of arbitration - in the region and internationally - include: • Due process issues in constituting the arbitral tribunal and challenging its members • Interim measures issued by arbitral tribunals and domestic courts • Burden, standard and types of proof in the corruption defence • What to do (and what to avoid doing) to prepare a persuasive case • Do post-award remedies ensure conformity of the arbitral process with the rule of law? • Do rules and guidelines properly regulate the conduct of arbitration? • The interface between domestic courts and arbitral tribunals • What are appropriate remedies for findings of illegality in investment arbitration? • The effect of foreign national court judgments relating to the arbitral award • What does the future hold for investment arbitration in Africa and beyond?
This Handbook offers academics and practitioners a one-stop-shop entry into the subject of international arbitration, and the ways in which it is discussed today.
The relevance and importance of the rule of law to the international legal order cannot be doubted and was recently reaffirmed by the Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Level's solemn commitment to it on behalf of states and international organizations. In this edited collection, leading scholars and practitioners from the fields of global governance, resources, investment and trade examine how the commitment to the rule of law manifests itself in the respective fields. The book looks at cutting-edge issues within each field and examines the questions arising from the interplay between them. With a clear three-part structure, it explores each area in detail and addresses contemporary challenges while trying to assure a commitment to the rule of law. The contributions also consider how the rule of law has been or should be reconceptualised. Taking a multi-disciplinary approach, the book will appeal to international lawyers from across the spectrum, including practitioners in the field of international investment and trade law.
Volume 11 of the EYIEL focuses on rights and obligations of business entities under international economic law. It deals with the responsibilities of business entities as well as their special status in various subfields of international law, including human rights, corruption, competition law, international investment law, civil liability and international security law. The contributions to this volume thus highlight the significance of international law for the regulation of business entities. In addition, EYIEL 11 addresses recent challenges, developments as well as events in European and international economic law such as the 2019 elections to the European Parliament, Brexit and the EU-Mercosur Free Trade Agreement. A series of essays reviewing new books on international trade and investment law completes the volume.
This book contributes to the empirical understanding of how arbitrators make their decisions on the substance of commercial disputes arising from international construction projects. It is based on in-depth interviews with 28 international construction arbitrators and on the analysis of dozens of international construction arbitration awards. The combined experience of those who participated in the author’s research amounted to hundreds of international construction arbitrations (~ 300 cases) in addition to several hundred international commercial arbitrations. It presents the results of the first and largest research to be undertaken in this area, and it will be useful to arbitration practitioners and scholars and to the wider audience of dispute resolution students, practitioners, and theorists. In turn, the book examines to what extent international arbitrators apply the law as the substantive norm, providing an explanation for that, and then offers insights into whether arbitrators, in fact, lean towards commercial and transnational norms to construe the parties’ contract before discussing to what extent international arbitrators take into account fairness considerations to reach their decisions on the merits of the parties’ claims. The book also examines to what extent international arbitrators apply mandatory rules of foreign law. Lastly, it provides insight into the effect of arbitrators’ background characteristics on their decisions. Written for arbitration practitioners (arbitrators and legal counsel) and scholars, the book will be useful for both experienced arbitrators and those starting their arbitration career or studying for their arbitration qualification. It will also be useful for project professionals involved in contract management and dispute resolution.
The collected papers in ICCA Congress Series no. 11, as reflected in its title, address important contemporary questions in international commercial arbitration. Included are contributions written by participants in the UNCITRAL Working Group on Arbitration and Conciliation on its current work on the requirement of a written form for an arbitration agreement, interim measures of protection and UNCITRAL?s Model Law on International Commercial Conciliation. Further contributions give leading practitioners? views on illegality in the formation and performance of contracts or in the conduct of the arbitration, examining questions on how the arbitral tribunal should deal with these vexed issues and how forgery and fraud may be detected. The factors that lead to acceptance by parties of the decisions of arbitrators are dealt with in contributions on the psychological aspects of dispute resolution. The volume concludes with a series of articles on arbitration under investment treaties written by experienced arbitrators and practitioners, with special emphasis on ICSID and NAFTA and the emerging issues of transparency, accountability and review. Contains lengthy articles on the ongoing work of UNCITRAL on proposed amendments to the UNCITRAL Model Law on International Commercial Arbitration and the recently adopted Model Law on International Commercial Conciliation Details the current thinking on the requirement of an arbitration agreement in writing and how this can be accommodated by the UNCITRAL Model Law and the 1958 New York Convention Addresses the granting of interim measures by arbitral tribunals and their enforcement by national and foreign courts Analyzes issues raised by illegality in the formation and performance of contracts and in the conduct arbitrations and provides a systematic overview of the answers given by legislation, arbitrators and courts Provides insight into the attitudes of arbitrators and parties regarding dispute settlement processes Addresses the changing public perception of arbitration under investment treaties
The 1969 Vienna Convention on the Law of Treaties makes no express reference to many of the most common canons and interpretative principles derived from international jurisprudence over many years. This volume represents the first modern, freestanding analysis of such canons and principles, their role in treaty interpretation and their relationship with the Vienna Convention regime. A top-flight roster of respected scholars and practitioners of public international law offers an in-depth examination of, among other things: • the origins of canons and interpretive principles; • their utility and limits in treaty interpretation; and • the application of numerous individual canons and interpretive principles, including effet utile, expressio unius, lex specialis, ejusdem generis, in dubio mitius, in pari materia, ex abundante cautela, the principles of contemporaneity and evolutive interpretation, and more. Extensive analysis of case law and scholarship provides insightful interpretive guidance across virtually every subfield of public international law. With its valuable insights into when the application of particular canons or principles of interpretation is most likely to be appropriate and persuasive, the volume will be of great value to lawyers representing parties (whether states, corporations or individuals) before international dispute resolution bodies, as well as to judges and arbitrators, legal officials at ministries of foreign affairs, and scholars of public international law.
Over the past few decades, arbitration has become the number one mechanism to settle international investment and commercial disputes. As a parallel development, the international legal framework to combat economic crime became much stronger within the fields of foreign public bribery, private bribery, fraud and money laundering. With frequent allegations of criminal conduct arising in international arbitration proceedings, it is crucially important to consider how such claims can be proven. This book analyses relevant case law involving alleged criminal conduct within international arbitration and addresses the most pressing issues regarding applicable criminal law and evidence. It is an essential resource for practising lawyers and academics active in the field of international investment and commercial arbitration.
