Unsurprisingly, it is the application of substantive mandatory rules that creates. International arbitration and private international law. The present work, based on a course given at the hague academy of international law in the summer 2007, identifies the philosophical postulates that. International arbitration 2012 9th edition a practical crossborder insight into international arbitration work the international comparative legal guide to. Gaillard, lebal theory if international arbitration martinus nijhoff. Detecting bias in international investment arbitration. The law applicable to veil piercing in international. Legal theory of international arbitration martinus nijhoff, leiden, the netherlands, 2010. According to art 35, the arbitral tribunal shall apply the rules of law designated by the parties as applicable to the.
As summarized in this introductory chapter, contemporary international conventions, national arbitration legislation, and institutional arbitration rules provide a specialized and highlysupportive enforcement regime for most contemporary international commercial arbitrations and. International commercial arbitration acica has the acica arbitration rules. Institute for comparative and international law, the university of melbourne. If the inline pdf is not rendering correctly, you can download the pdf file here. The fate of a decision refusing to set aside an award in the legal order of the seat 144. International arbitration readily lends itself to a legal theory analysis. However, the acronym adr is more often used to describe nonbinding procedures such as mediation, thereby distinguishing between litigation and arbitration on the one hand, and adr on the other. Legal nature and functions of referendum in constitutional. It is intended to provide general information on the laws of international arbitration and is current at the time of printing. This book develops a real legal theory of international arbitration, showing and comparing the three main points of view about it, in a clear and deep explanation. Comparative and private international law at the university of cologne.
This book fills a gap in legal academic study and practice in international commercial arbitration ica by offering an indepth analysis on legal discourse and interpretation. Legal interpretation in international commercial arbitration. Legal theory of international arbitration by emmanuel gaillard. International arbitration 2009 published by global legal group with contributions from. A guide to international arbitration legal services. Everyday low prices and free delivery on eligible orders. Relationship between the parties and the arbitrator. Jones day professorship in commercial law lecture smu, singapore 12 march 2015 the subjectmatter of my lecture has in recent years become of increasing importance. See generally emmanuel gaillard, legal theory if international arbitration martinus. A discoursebased perspective find, read and cite all the research you need on researchgate.
See generally emmanuel gaillard, legal theory if international arbitration martinus nijhoff publishers 2010. Arbitration s dependence on private international law manifests itself throughout the lifecycle of arbitration, from the crafting of an enforceable arbitration agreement, through the entire arbitral process, to the time an award comes before a national court for annulment or for recognition and enforcement. Because each of these three main representations provides a coherent vision of the entirety of the arbitral process, important practical consequences. Lex mercatoria in international arbitration theory and practice.
Article 92g of the iba rules on the taking of evidence in. Legal theory of international arbitration vii c the transnational approach 126 c. The legal personality is a formal concept stating who the legal person is under the international law in the eyes of international law21 subject of international law. Ibrahim fadlallah, arbitration facing conflicts of culture, arbitration international 25 2009. What if the dispute arouse out of the contract to build a spaceship in the country 4, a nonmodel law country. Legal principles applicable to the award of damages. Given the need for an efficient dispute resolution mechanism, international arbitration has emerged as the preferred option for resolving cross. Guide to international arbitration 3 particularly in the us therefore refer to arbitration as a form of alternative dispute resolution adr. Pdf legal theory of international arbitration semantic scholar. While most jurisdictions today recognize that the separate legal personality of a corporation can be disregarded to. The fundamentally philosophical notions of autonomy and freedom are at the heart of its field of study. Written by a specialist in international business law, arbitration and legal theory, it examines the discursive framework of arbitral proceedings, through an exploration. Kuckenberg adds that he thinks gaillards approach is the window to the future in ross, a. Legal theory of international arbitration emmanuel gaillard on.
The present work, based on a course given at the hague academy of international law in the summer 2007, identifies the philosophical postulates that underlie this field of study and shows their profound coherence and the practical consequences that follow from these postulates in. The fate of an award set aside in the legal order of the seat 5 2. This publication states the position as at september 2012. When applying the income approach, the theory of business valuation determines the. International arbitration is arbitration between companies or individuals in different states, usually by including a provision for future disputes in a contract the predominant system of rules is the uncitral arbitration rules, as well as the united nations convention on the recognition and enforcement of foreign arbitral awards of 1958 the new york convention. Monism dualism international law above domestic law, controlling domestic legal open to the view that international values can override domestic values more likely to see international law. Emmanuel gaillard international arbitration readily lends itself to a legal theory analysis. Is an arbitration international if we have two companies from country 1, arbitrating a dispute in 2, under the law of 3. Uncitral model law on arbitration all parties shall be treated with equality, 1. Bhatia and others published international commercial arbitration practice. There was a time when confidentiality in arbitration was assumed both to exist as a fundamental feature of. The first factual scenario refers to the arbitration rules of the international chambers of commerce and the english arbitration act 1996, whereas the second refers to the uncitral arbitration rules and the swiss private international law act. See also emmanuel gaillard, three philosophies of international.
International arbitration considerations of procedural economy, proportional. Arbitration is not a default dispute resolution mechanism and can only be adopted via party consent. In choice of law analyses, lex mercatoria addresses specific. Written by a specialist in international business law, arbitration and legal theory, it examines the discursive framework of arbitral proceedings, through an exploration of the unique status of. Juris arbitration law is a database platform covering virtually all forms of international, as well as u. This facilitates communication and coordination, both internally and. Article 1 3 a the parties to the arbitration agreement have, at the time of the. The attention of arbitration scholars and practitioners is frequently absorbed by the relationship between the parties, which derives from and gives rise to the arbitration agreement. International arbitrations take place within a complex and vitallyimportant international legal framework. The arbitration amendment act, 2009 3 2 proceedings before the court shall not be continued after an application under subsection 1 has been made and the matter remains undetermined. Legal theory of international arbitration ebook, 2010. Firstly, the parties exclude jurisdiction of the courts by 10 uncitral model law on international commercial arbitration 1985 with amendments as adopted in 2006hereinafter model law, art 28 this principle can be found in. Originally from international arbitration law and practice, third edition. Chapter 11 the arbitrator international arbitration law.
These critiques stand alongside mandates of fairness already embedded in the operative rules of international arbitration, such as, for example, article 18 of the. Legal theory of international arbitration researchgate. Cairton i summary it is the thesis of this article that the arbitration process is voluntary and consensual in origin, that it is the judicial organ of systems of law. Uncitral model law on international commercial arbitration a model law for adoption as part of domestic legislation states have the flexibility to depart from the text model law designed to work in conjunction with the party autonomy and the arbitration rules unless the parties have agreed otherwise. The fate of a decision refusing to set aside an award in the. Professor gaillards lectures, which have now been published in a handy pocket book format, are indeed indispensable to a proper understanding of contemporary international arbitration. Arbitration is a preferred process of dispute resolution chosen by parties. The parties arbitration agreement and the applicable rules that govern the case will dictate the process. When arbitration i s deemed to be international in the united nation commission on international trade law uncitral model law, arbitration is deemed to be international if any one of four different situations is present. Conflict of laws in international commercial arbitration. International commercial arbitration law and recent developments in india 1 1. The law applicable to veil piercing in international arbitration.
Currently, there is no generally accepted definition of arbitration, although some legal acts both international and national nature reflect attempts to give a legal notion of this institution. In theory, tribunals can do everything which the prague rules envis. The third source of international law is based on the theory of natural law, which argues that laws are a reflection of the instinctual. Introduction to international commercial arbitration. The predominant system of rules is the uncitral arbitration rules, as well as the united nations convention on the recognition and enforcement of foreign arbitral awards of 1958. Professor of law at paris xii university and the head of the international arbitration. In the theory of constitutional law the framework concept has been formed that puts direct democracy into the system of legal and institutional coordinates of the modern state legal model. And this is the view this paper adopts for the assessment of the legal status of the arbitration tribunal. In choice of law analyses, lex mercatoria addresses specific difficulties relating to the conflict of laws through a principled decision making, such as the applicable conflict rules, and the interpretation of the parties intentions as to the applicable substantive rules. Legal theory of international arbitration ebook isbn. Introduction increase in international trade and investment is accompanied by growth in crossborder commercial disputes.
Instead of fitting arbitration into the existing legal framework, the autonomous theory. The international centre for the settlement of investment disputes also handles arbitration. Contributing to the emerging computational analysis of the international investment regime,5 this article employs machinecoding to investigate close to 1700 bilateral investment treaties bits and free trade. This is the level at which it may matter to apprehend international arbitration in terms of visions or representations of international arbitration. The law applicable to veil piercing in international arbitration juan marcos otazu this paper addresses a significant contemporary issue in international commercial arbitration. This article also describes the main rituals in international arbitration that structure the manner in which social actors are. Download citation legal theory of international arbitration the present work, based on a course given at the hague academy of international law in the. The firm takes full advantage of the latham network of international offices supported by an advanced, unified, technology platform.
Chapter 11 the arbitrator international arbitration. This is a provisional translation of the croatian law on arbitration prepared by dr. Relationship between national and international law. The consequences of the representations of international arbitration on the fate of the award 5 1. After the hearing is completed and the arbitrator determines no more evidence will be presented, the. If you received an entitlement which is defined as the right to use, access and consume the software and services from an organisation or group, including but not limited to a business or any other commercial entity, government entity, nonprofit organization or educational institution each, a business under one of adobes business plans such as creative. Instead of fitting arbitration into the existing legal framework, the autonomous theory defines arbitration as an autonomous institution, which should not be restrained by the law of the place of arbitration. This recourse takes the form of arbitration in international legal fora outside of the host countrys legal system. Law on arbitration arbitration act 2 6 dispute without an international element means a dispute in which both parties are natural persons with domicile or habitual residence in croatia, or legal persons established under the law of the republic of croatia, unless the dispute meets the requirements of subparagraph 7 of this paragraph. Areas of law international arbitration publications. One of the most common forums for investorstate dispute resolution is the international center for the settlement of investment disputes icsid. A practical insight to crossborder international arbitration work uk the international comparative legal guide to.
The arbitral institutions considered in this book are those available in the jurisdictions under consideration australia, hong kong, singapore, malaysia. Setting as point of departure the regulatory vacuum in nearly all national laws on international arbitration, this study examines in depth this contentoflaws enquiry in an attempt to foster doctrinal integrity, legal certainty and predictability in arbitral proceedings. The third source of international law is based on the theory of natural law, which argues that. Introduction w hile the practice of veil piercing has been accepted in numerous jurisdic tions, its application in international arbitration creates unique difficulties.
Specifically, this study encompasses a three level analysis of the topic. International arbitration as a transnational system of justice. Emmanuel gaillard, the representations of international arbitration, journal oflnternational dispute settlement 20 1 0 pp. Legal theory of international arbitration martinus nijhoff, 2010. Buy legal theory of international arbitration by gaillard, emmanuel isbn. Uncitral model law on international commercial arbitration a model law for adoption as part of domestic legislation states have the flexibility to depart from the text model law designed to work in conjunction with the party autonomy and the arbitration rules. Different visions of the international legal system systems today. Sometimes, parties will also submit written arguments after the hearing at the direction of the arbitrator.
The representations of international arbitration oxford academic. International commercial arbitration with the growth of globalization, liberalization regimes and rapid advancement in international business relationships, it is increasingl y pertinent to have a flexible and quick method of resolving disput es. General editor, iai series on international arbitration. Lex mercatoria in international arbitration theory and. The law applicable to legal privilege in international commercial arbitration friedrich rosenfeld chapter 9 abuse of process in international arbitration jacob b. Law and contemporary problems voluie 17 autumn, 1952 nunbzr 4 theory of the arbitration process kenneth s. They can have their own rules for enforcement, such as arbitration, or refer enforcement concerns to another agency, such as the international court of justice. Do they exist for international commercial arbitration. Revisiting the contentoflaws enquiry in international. Legal status of the arbitration tribunal under the.
A guide to international arbitration second edition. Contemporary issues in international arbitration and mediation. Another example of this view of cultural misunderstandings in arbitration is khawar ureshis cul tural sensitivity and international arbitration, international journal of arab arbitration 2009, vol. The limitation of state sovereignty in hosting foreign. Further, it considers the extent to which investorstate arbitration, under. International arbitration is arbitration between companies or individuals in different states, usually by including a provision for future disputes in a contract.
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