The Importance of International Commercial Arbitration Essay

Kolkey, D. M., Chernick, R., & Neal, B. R. (2012). Practitioners handbook on international arbitration and mediation (3rd ed.). Huntington: JurisNet.

Finally, based on common law, the principle of comity and equity may oblige the courts to recognize foreign arbitral award, regardless where the arbitration was seated. The US Courts

After carefully considering the situation in both plaintiff (Eunice) and defendant (RFYL), arbitration should be an effective Alternative Dispute Resolution in

One of the foundations of arbitration is that awards rendered are final and not subject to appeal before the courts. In this respect, Article 5 of the UNCITRAL Model Law provides for minimal intervention, and says, “In matters governed by this Law, no court shall intervene except where so provided in this Law“. As a result, the grounds upon which a court may set aside an award or refuse to recognize and enforce the same are limited. Article 34 of the Model Law and Article V of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards provide the restrictive grounds for such relief.

Despite the fact, that the idea behind the procedural public policy concerns only arbitration proceedings itself, still the concept has to be scrutinized. Reference to the arbitral proceeding makes is understandable that procedural public policy deducts from the principle of due process . Though, there exist affirmation whether procedural public policy overlaps with the Article 1 of the New York Convention or whether this constitutes more than any breach of due process should not be a breach of public policy. According to the authors point of view, it has not sense to restrict the due process only to cases, such as lack of proper notification or lack of arbitrators’ qualification. Failure to present facts of the should not automatically form a breach of due process and also breach of procedural public policy.

In the United States, the laws responsible for governing arbitration are contained in the Federal Arbitration Act. It mainly subjects most arbitration to the judicial review of single standards regardless of whether the dispute has been categorized as either international or domestic. The first chapter contains the very basic of the provisions of the act with regards to making of the arbitration agreements and the enforcing of awards. The second chapter of the federal arbitration act is for implementing the New York convention while the third chapter holds the Panama Convention. Both the second and the third chapters are described as the International Federal Arbitration Acts. The international arbitration agreement is however subjected to the United States ‘domestic

The discussion of the commercial arbitration is evident with many authors in their writings. In particular, Terry & Guigni, Business, Society and the Law (2003) outline the critical views on its purpose and how the promise has been compromised. Negativity does flow through due to

Arbitration is a dispute resolution method that allows the dispute to be solved outside the court of law. When both parties agree on the arbitration procedure, an arbitrator1 will review the evidence, listen to parties and then issue a final decision (award). This method differs from court litigation in several ways and thus the preference of some MNE’s for arbitration rather than litigation. First, it is a less formal procedure than court litigation, as it does not need a judge or a court. However, it is more formal than the mediation or negotiation processes. Second, and one of the main differences,

Arbitration is legal technique used to resolve any disputes outside of the courts. Arbitration allows for speedy and cheap resolution of any disputes, the parties involved in a dispute agree to appoint a third person (arbitrator) who will hear their testimonies, and look into the evidence they provide. The arbitrator's decision cannot be challenged in a law court as it is considered final and the parties involved have to accept the decision (Brams & Merrill, 1986). There are only very limited circumstances where the decision of an arbitrator can be challenged, and this is mostly if there can be proof from one of the parties showing that the arbitrator was biased in their decision or ruling. The chosen arbitrator will be an experienced person in the area of the dispute.

ECJ held that the court second seised (Austrian court) must stay proceedings despite being designated in a jurisdiction agreement until the court first seised (Italian court) determined that the Gasser case was not within the jurisdiction of that court. Furthermore, it is not allowed to ignore Art 21 even when the court first seised lasted the proceedings much longer than needed. ECJ also accounted for the importance of stringent compliance lis pendens rule that the Regulation is established based on mutual trust in which Member States consent to trust other’s legal systems and judicial institutes .

Through the materials in this research, it can be concluded that ADR and precisely International Commercial Arbitration can be more efficient than litigation and any means of ADR, as saves time, coasts and preserves relationships between the parties. Furthermore shares the features of the other ADR methods; such neutrality, confidentiality, and speed. But it has one more advantage over other ADR methods, that by the end of the arbitral process the arbitrator will make an award which can be internationally enforced under New York Convention 1958.

The Supreme Court held in State of Orissa v Damodar Das, that the cause did not have the effect of being an arbitration clause. The court said that the clause did not contain an agreement nor it envisaged any difference or dispute that might arise or had arisen in the execution of the words for reference to arbitration , where one party raised a dispute and it was desired by the other. It was held that it had to be treated as a dispute. The objection raised could be exclusively within the jurisdiction of the Arbitral Tribunal .

Along the years, conflicts have become inevitable in our day to day activities. In resolving a dispute, several factors have to be considered. Factors such as the nature of the conflict, the role of the parties resolving the dispute, the rights and interests of the parties and the procedures used to resolve the dispute.The court system is an unpleasant means of dispute resolution when it comes to civil or domestic issues.When resolving such issues, alternative means should be consulted. The first part of this paper will look at Alternative Dispute Resolution and some of its processes, and the public availability and voluntary nature of alternative dispute resolution in reference to the Article 6(1) of the European Convention on Human Rights. The second part of this paper, however, would try to advise a client using alternative means to effectively resolve the dispute in question.

There is a mighty desire for long-lasting peace after two major wars which meant the European integration moved towards reality and is ever-increasing. This has only led to major empowerment upon its institutions, such as The Court of Justice of the European Union (CJEU). The CJEU has taken a major involvement in the development of the European Union as it attempts to shape the legal order. Under Article 267, The Court of Justice has jurisdiction to give preliminary rulings on questions of interpretation of European law which national courts have a loyal duty to follow. Even though the CJEU is considered a prominent figure in renovating the legal order, national courts have a vital role within the application of the law. The preliminary procedure between the court of Justice and national courts have often been considered as very accommodating. Nonetheless there have been many issues pointed out may contradict this for instance there have been situations where national courts have been more hesitant in referring their cases to the Court of Justice. Prime examples which are considered as the reason behind the transforming relationship between the CJEU and national courts is the formation of Acte Clair. Although the CJEU prime intention is to seek the co-operation from national courts, by shaping this cooperation it is only placing itself in a superior position. Throughout this essay there shall discussions which will attempt to conclude whether the preliminary

However resolving international commercial disputes via litigation by national courts entailed many complications. For instance host state may come up with legislations or policies which may affect the business and prevent the investor from getting any remedy for damages suffered; the country may not have strong and update laws to protect the investments. Also the adversarial nature of the litigation may not help to maintain good business relationship. As such arbitration which is consensual, flexible, informal, binding and enforceable can be considered as a better form of dispute resolution. The Convention on Peaceful Resolution of International Dispute signed in 1907 provided for conclusion of Bilateral Arbitration Treaties however there was no direct cause of action by the foreign national which had suffered damages. In 1965 there was a major reform by the creation of ICSID mechanism after the conclusion of Washington Convention. As a result many states entered into Bilateral Investment Treaties ‘BITS’ to promote and protect investment. As per the treaties disputes were submitted to International arbitration which were completely delocalised and Investors could seek remedy