The choice between arbitration and judiciary in international trade and investment (original) (raw)
Related papers
Early and recent efforts to support International Arbitration
In view of the growing assured sense of the international traders and investors, toward the speedy and adequate practice of the mechanisms of the alternative dispute resolution to resolve the disputes. While the arbitration comes on the top of these means, the international community has established many rules and adopted many measures that have contributed and still continue to contribute a significant support for both, the international commercial arbitration system and international investment arbitration system, not only to encourage trade and investment between countries and each other, but also to support the features and mechanisms of the modern economies. In the next few lines, we will explore together some of the efforts made previously and recently by the organizations and bodies of the international community to support this trend. • The United Nations Commission on International Trade Law (UNCETRAL) The United Nations Commission on International Trade Law (UNCETRAL) Adopted special rules, which approved on 1974 by the General Assembly of the United Nations, in order to facilitate Ad-Hoc arbitration procedures, instead such procedures to be prepared by litigants or arbitral tribunal; which may not agree later.
Nnamdi Azikiwe University Journal of International Law and Jurisprudence, 2017
This paper analyses the mechanism for settlement of investment dispute in International Arbitration. The paper adopts doctrinal and analytical approach to legal research. The study examines the provisions of the International Centre for Settlement of Investment Dispute (ICSID) being the most recognised platform for settlement of investment dispute. However, references were made to similar institutions for comparison. The study reveals that Investment Treaties-either multi or bilateral treaty (BITs) are entered into to provide avenue for settlement of investment dispute that may arise between states or their nationals to the treaty. The paper argues that certain provisions of ICSID and other institutional mechanisms for settlement of investment dispute contain compulsory arbitration thereby negating the concepts of consent and party autonomy which are salient elements of international arbitration. The paper concludes with recommendations that the offending provisions of ICSID should be reformed in tandem with jurisprudence of arbitration proceedings.
The importance of International Commercial Arbitration in the era of Globalization
Since the revolution of telecommunications appeared, with its amazing development over the past few decades, we have become accustomed to the idea that the world has become a small village of intertwined interests, so all of us are now inside what so called the bubble of globalization, which is inevitable for at least in the near future. Because we entered through the gates of globalization to the space that now brings us all together, we should be wonder about the importance of the international commercial arbitration ? In the past few decades, the arbitration has established successfully in many countries, these countries referred to be as the economic giants, so we are wonder is the arbitration really an economic necessity, and is it the arbitration is being a guarantee for attracting the investment ? If we need to reach a preliminary answer, we have to say yes, but if we would like to achieve a definite answer, we should consider two factors pushing toward determining the text of this answer.
International Arbitration: Selected Preliminary Topics
A. International arbitration as opposed to other means of dispute settlement B. The Concept of International Arbitration: definition, composition and international public / private arbitration C. The requirement of consent D. Applicable Law E. The pathology of arbitral awards
International Commercial Litigation and Arbitration Research Essay
International Journal of Social Science and Human Research
Arbitration is an alternative dispute resolution method (ADR) and has now become one of the preferred mechanisms chosen by parties to settle disputes of a commercial nature. There is no proper definition of arbitration and unlike court proceedings; it is a voluntary agreement agreed to by the disputing parties and the decision also known as the arbitral award is binding upon them. Arbitration is quasi-judicial in nature and an arbitrator often referred to as a private judge is a person who adjudicates on disputes submitted to him or her by the parties.1According to Sir John Donaldson, ‘arbitrators and judges are partners in business of dispensing justice, the judges in the public sector and the arbitrators in the private sector.’2 Nowadays, arbitration is an emerging trend and the popularity of such a system can be attributed to many advantages it offers compared to litigation. The main fundamental features of arbitration among many others are flexibility, confidentiality, impartial...
Review of The Principles and Practice of International Commercial Arbitration by Margaret L. Moses
Berkeley Journal of International Law, 2013
In recent decades, globalization has expanded and strengthened states’ economic relations around the world. In this context, the effects of globalization have benefited private commercial entities by providing them broader and more attractive means of concluding transactions. As a consequence, international transactions have experienced increasing degrees of complexity regarding legal matters. The old paradigm that applied local laws in every dispute is no longer the answer for new international transactions. The latest element of internationalization involves application of other countries’ laws and, consequently, involvement of their judicial systems. This latter effect represents a disadvantage for private entities unfamiliar with the legal system of a particular country. International litigation can also be very expensive, and it may take several years before the parties reach a final resolution. Therefore, parties are usually resistant to subjecting themselves to the jurisdicti...
European Yearbook of International Economic Law, 2020
This Chapter first summarizes the criticism voiced against investment treaty arbitration with specific regard to its relationship with domestic courts (infra at Sect. 2.1). It does not seek to discuss all of the multiple concerns raised against investment arbitration, which have already been addressed in the authors' First CIDS Report 1 and are further examined in the UNCITRAL Secretariat's papers, 2 among other materials. 3 Discussing the criticism of investment arbitration vis-à-vis domestic courts requires providing an overview of the main reasons why States created the investment treaty system in the first place (infra at Sect. 2.2) and examining today's justifications for keeping or putting in place an international system of investment dispute resolution, whether in the form of arbitration or standing adjudicatory bodies (infra at Sect. 2.3). The following subsections will in particular ask: What goals were IIAs intended to achieve? In light of those goals, what is the function of international courts and tribunals in the investment law domain, either in their current arbitral configuration or in future constellations such as a MIC? As States are considering questions concerning the institutional design and redesign of the system, it appears important to seek to provide answers to these questions in order to test the continuing validity of the assumptions which underpin the conclusion of investment treaties with international dispute resolution mechanisms.
Law Series of the Annals of the West University of Timisoara, 2016
The examination of the appearance, extent and necessity of transparency and transparent management in certain sectors of the global business environment, furthermore, the comparative analyzation of the related regulatory background gives the backbone of the paper. The increased need for corporate governance and alternative dispute resolution mechanisms in the international business environment (especially via the widespread utilization of investor-state arbitration) proves to be a desire directed towards an increasingly transparent, thus more reliable approach. Therefore, the examination and exploration of conflicting interests and the regulatory background in connection with such matters proves useful in the development of these phenomena. In order to get a deeper understanding of the topic, the paper discovers the historical background of intemational arbitration and compares the arbitration rules of certain arbitral institutions with regards to privacy and confidentiality, thus attempting to measure the extent of transparency manifested in such instruments.