"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, December 29, 2011

News & Opinions on Arbitration

In this article, Yogesh Sapkale and Rushab Dhandokia of Money Life interview Mr. Joseph Massey, Chief Executive & MD, MCX Stock Exchange on resolution of disputes concerning stock exchanges (generally investor-broker disputes). In the interview, Mr. Massey argues that conciliation and mediation are becoming more popular than arbitration.

It is raining ADR in Money Life. In this article, Rushab Dhandokia interviews Achintya Mukherjee, a consumer activist on ADR in telecom sector.

This news item reports the criticism by the Committee on Environment in the Legislative Assembly, J & K for not taking adequate protection in protecting the environment while undertaking the Kishanganga Hydel Power Project (KHPP). We did a post a few months back on the environmental impact of the (KHPP).

Ramaswamy Iyer, the famed water expert, has written an excellent piece in the Hindu on the Mullaperiyar controversy between Kerala and Tamil Nadu.

MJ Antony’s article in the Business Standard titled “The Downside of Arbitration” deals primarily with costs in arbitration.

Monday, December 19, 2011

Errores Emendantur: Yograj Infrastructure v Ssangyong (II)

A Two Judge Bench of the Supreme Court consisting of Altamas Kabir & Cyraic Joseph, JJ (Indian Kanoon Link, MANU/SC/1495/2011) passed a judgement on 15th of this month. The judgement (Correction Judgement) seeks to correct certain errors that were made by the same Two Judge Bench in another judgement (Earlier Judgement) in the same matter. This post deals with the Correction Judgement.

The Correction Judgement was pursuant to an Interlocutory Application made by Mr. Dharmendra Rautray, Advocate-on-Record for SSANGYONG Engineering under Order XIII Rule 3 of the Supreme Court Rules, 1966 which reads as below:
"Subject to provisions contained in Order XL of these rules a judgement pronounced by the Court or by a majority of the Court or by a dissenting Judge in open court shall not afterwards be altered or added to, save for the purpose of correcting a clerical or arithmetic mistake or an error arising from any accidental slip or opinion."
The Application was for clarification and correction of the following errors in the Earlier Judgement:
  • At Para 5, the Earlier Judgement states that the application for interim relief was filed by Ssangyong under Section 17 of the Arbitration and Conciliation Act, 1996 (Act). However, the applications were filed under Rule 24 of the then Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) and not under Section 17.
  • Para 35 of the Earlier Judgement mentions that SIAC Rules was the curial law. However, as stated in Para 37 of the Earlier Judgement, the Singaporean International Arbitration Act was the curial law.
  • The Earlier Judgement (para 36) stated that as per Bhatia International, Part I was applicable even if the seat was in India. However, as per Bhatia International, Part I was applicable if the seat was outside India.
  • Para 4 of the Earlier Judgement erroneously mentions that the Appellant, Yograj Infrastructure, applied to the court under Section 9 of the Act. In fact, the Respondentr had applied to the court under Section 9. 
Yograj Infrastructure objected to the first request for clarification but the same was dismissed considering that Rule 32 clearly provided that the Singaporean International Arbitration Act was to be the law of arbitration. Thus the court concluded that the law of arbitration was the Singaporean International Arbitration Act.

We had noted the errors contained in the Earlier Judgement in our posts which can be accessed from here and here. Also, see this post in the Indian Corporate Law Blog which notes the errors that have been corrected in the Correction Judgement.

Sunday, December 18, 2011

Report Review: Changing Face of Arbitration in India by E & Y

In this series of posts, we review the recently circulated report titled "Changing Face of Arbitration in India". Frankly, I didn't expect such a report to be authored under the aegis of an entity (Ernst & Young) that specialises in "assurance, tax, transaction and advisory services." Such a study should have been conducted by a the Law Firms or the academia. In any case, the report is probably the first-of-its-kind that is at least accessible. The report is very short- spabout 13-14 pages if one chooses to exclude the graphics.

The survey, the report states, was conducted by receiving online feedback from 68 respondents and interviews of six eminent personalities. The six personalities constituted partners of firms such as Zia Mody, Pramod Nair, Matthew Gearing etc. It is surprising that arbitration counsels (or atleast those who appear before arbitral tribunals regularly) were not included in the list of eminent personalities although advocates are included in the sixty eight respondents category. At p. 17 of the report, the profiles of the respondents are described. A problem with the profiles being depicted in the form of percentages is that the number of respondents were relatively small (68) for a survey research of this kind. It would have been better to have them depicted in numbers as well. We have attempted to convert the percentages into numbers (reducing the decimals to the nearest whole numbers:

Percentage (%)
Decimal Numbers
Whole Numbers
Partners/ Proprietors of Law firms
Legal head/ General Counsel

Now, whether the survey's title is an exaggeration considering the number of participants involved is a valid question. But for this minor shortcoming, the study is interesting and there are several aspects worth noting in it. We'll analyse all those in another post on this topic.

Thursday, December 15, 2011

Monthly Roundup of SSRN Articles on Arbitration (November 2011)

Articles 34 and 36 of the Uncitral Model Law on International Commercial Arbitration: The Court's Discretion
Amokura Kawharu
Faculty of Law, University of Auckland

The opening paragraph of art 34(2) Model Law provides that “an arbitral award may be set aside by the court…”. In art 36(1), an enforcement court is directed that “recognition or enforcement of an arbitral award… may be refused” only on proof one of the enumerated grounds. The use of the permissive word “may” in these provisions indicates that a reviewing court in a setting aside proceeding under art 34, and an enforcement court acting under art 36, has a residual discretion whether to set aside or to refuse enforcement, despite the proof of a relevant ground. The court’s discretion in arts 34 and 36 implicates one of the basic issues in modern arbitration law, namely the extent of the court’s role in reviewing awards. The paper briefly considers the existence of the discretion, since it has not been universally accepted. It then moves to consider the scope of the discretion and the principles which have been judicially recognised as relevant to its exercise.

The Issue of Repeat Arbitrators: Is it a Problem and How Should the Arbitration Institutions Respond?
Contemporary Asia Arbitration Journal, Vol. 4, No. 2, pp. 247-271, November 2011
Houchi Kuo

The issue of repeat appointments of the same arbitrator by the same party or counsel or to related proceedings has been a much debated and discussed topic by the international arbitration community. This paper highlights potential problems the practice through a comparative review of case law and proposes ways arbitral institutions can address this growing concern.

This paper argues that although repeat appointments may be an inevitable outcome of limits in the number of the skilled and experienced arbitrators, such appointments can create justifiable doubts as to the arbitrator‟s independence or impartiality if an arbitrator has a history of ruling in favor of his appointer, has a financial or other personal stake in the outcome, or has become financially dependant upon the same appointer. As a result, the issue of repeat arbitrators can jeopardize public trust and faith in international arbitration.

In response, arbitral institutions should take steps to address this trend by requiring their arbitrators to disclose past and present repeat appointments made by the same party or counsel and by instituting a clear policy that allows the arbitrator to know when he or she should disclose past engagements and whether his or her integrity could be questioned by repeat appointments.

Definition of Investors and Related Issues in Investment Treaty Arbitration Under the Proposed Taiwan-China Bilateral Investment Agreement
Contemporary Asia Arbitration Journal, Vol. 4, No. 2, pp. 179-213, November 2011
Chi-Chung Kao

In light of the massive volume of Taiwanese investment in China, and the recently opened access of Chinese investment in Taiwan, Article 5 of the recently concluded Economic Corporation Framework Agreement (ECFA) between Taiwan and China specifically points out the necessity of a bilateral investment agreement (BIA) between the two parties, which is currently under negotiation. The definition of investors in the proposed cross-strait BIA is an important issue as it is a precondition for a private party to invoke the dispute resolution mechanism under the BIA. The commonly recognized criteria for the determination of covered investors are nationality or permanent residency for individual investors, and incorporation, effective seat, and/or economic link for legal entities. These established standards might require modification if applied in the proposed Taiwan-China BIA (TCBIA), due to the infamous 'One China' policy. This article examines respective Taiwanese and Chinese legislations, regulations and existing cross-strait agreements in an attempt to find consensus for alternative standards, possibly a household registration or ID certificate standard for individual investors, and a combination of 'incorporation' and 'effective seat' plus control criteria for corporate investors. Under such approach, related issues, such as dual nationality, control over legal entities, and treaty shopping could be properly dealt with and the TCBIA could thus serve Taiwan’s best interest in the cross-strait context.

The Failing Faith in Class Actions: Dukes v. Wal-Mart and AT&T Mobility v. Concepcion
Duke Journal of Constitutional Law & Public Policy, Vol. 7, No. Special Issue, 2011, UC Irvine School of Law Research Paper No. 11-54
Catherine Fisk and Erwin Chemerinsky
Duke University School of Law and University of California, Irvine School of Law , Duke University - School of Law , University of California, Irvine School of Law

In Wal-Mart v. Dukes and AT&T Mobility v. Concepcion, the Supreme Court revamped the law concerning the Federal Arbitration Act and Rule 23 of the Federal Rules of Civil Procedure, allowing businesses to insulate themselves from class action suits by employees and consumers. Each decision has significant implications within its field (employment discrimination law and consumer law, respectively). Together, the two decisions allow companies to opt out of class action liability through contract and make it more difficult to bring class actions against corporations that do not use such contracts. Collectively, they reflect the belief of the five conservative Justices in the majority that companies must be protected from litigation that is large simply because companies are large. Big companies, like Wal-Mart and AT&T Mobility, that deal with thousands or millions of consumers and employees enjoy certain strategic advantages because of their size. Similarly, class actions pose certain strategic advantages because of their size. The current Court majority has used its power to protect companies from big litigation. In so doing, the Court has abdicated its responsibility to interpret federal laws on employment, arbitration, and class actions consistently with Congress’s intent to balance the interests of employees and consumers with those of large corporations. This article examines what Wal-Mart and AT&T mean for future employment class actions.

Private and Public Dispute Resolution in International Taxation
Contemporary Asia Arbitration Journal, Vol. 4, No. 2, pp. 121-144, 2011
Charles R. Irish
affiliation not provided to SSRN

An inevitable byproduct of the globalization of economic activities has been the increased attention to international dispute resolution. International arbitration, mediation, conciliation as well as traditional cross border litigation proceedings are now relatively common. One subset of international disputes that has not received much attention, however, is the resolution of international tax disputes.

This essay is intended to shed some light on international tax dispute resolution. The essay is divided into three principal parts. The first part describes how private and public international tax disputes arise and explains briefly how they are commonly resolved. The second major part of the essay then focuses specifically on a relatively new area of international tax dispute resolution: arbitration of international tax disputes. The second part also describes and compares the most important forms of international tax dispute resolution arbitration now in use, including specifically the EU’s arbitration rules, the OECD’s Model Arbitration Rules, and the arbitration provisions included in some of the more recent bilateral tax treaties to which the U.S. is a party. The third part of the essay concludes with an analysis of the existing arbitration rules and suggestions for how they can be improved.

BIT Arbitration in India: Exploring Applicability of the 1996 Act and Enforcement of Resultant Arbitral Awards
Contemporary Asia Arbitration Journal, Vol. 4, No. 2, pp. 273-304, November 2011
S. Bhushan
NALSAR University of Law

In current academic literature India has been subject to much criticism for not being an arbitration friendly jurisdiction. Though most of such criticism falls in the domain of international commercial arbitration, this paper seeks to further the debate by making a similar proposition for cases involving India in investment treaty arbitration. Because of a particular fashioning of most BITs to which India is a Contracting State, allowing for initiation of host State claims there is an impression of vitality of such provisions created. This impression is misplaced because of the peculiar ordering of Indian jurisprudence on arbitration which excludes the application of the Arbitration and Conciliation Act 1996 thereby leading to the enforceability of resultant awards in India. Further, it has been argued that even if the Act is presumed to apply, the arbitration resulting from a BIT to which India is a party would suffer excessive intervention from municipal courts of India, the seat of the proceedings notwithstanding. Lastly, it has been propositioned that even if the Act is made applicable, the award from such an arbitration proceeding would be refuse denforcement in India on grounds of public policy, etc. This paper seeks to make a case for the changing of the design of BITs allowing for host state claims to which India is a party, accompanied with relevant amendments to the Act in order to align it with the rigors of investment treaty arbitration.

Proposition De Règlement Du Parlement Européen Et Du Conseil Concernant La Compétence Judiciaire, La Reconnaissance Et L'Exécution Des Décisions En Matière Civile Et Commerciale (Refonte) (Proposal for a Regulation of the European Parliament and of the Council on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast))
Ilaria Pretelli
University of Urbino Carlo Bo

La version en anglais de ce document est disponible ici : http://ssrn.com/abstract=1963155

The effective development of mutual trust requires a solid foundation. Asserting such trust a priori could compromise relationships between different States rather than accelerating the process of integration. The abolition of the exequatur system entails a real risk of an increase of forum shopping and procedural frauds. Instead of reforming the architecture and foundations of the Brussels I Regulation, which has already been shown to operate effectively, it would be preferable to strengthen the efficacy of the regulation by simplifying its rules and imposing mandatory deadlines and means to sanction instances of fraud. The associated economic benefits will follow ipso facto.

Note: Downloadable document is in French.

Improving Efficiency in Investment Arbitration
Contemporary Asia Arbitration Journal, Vol. 4, No. 2, pp. 215-246, November 2011
Lars A. Markert
affiliation not provided to SSRN

The call for more efficient proceedings has been on the agenda in international commercial arbitration for quite a while. However, in investment arbitration the topic has so far received little attention. This article attempts to delineate criteria for the concept of efficiency and how these might have to be balanced with the typical characteristics of investment arbitration. It then goes on to analyze the effectiveness of recent efficiency improvements to arbitration rules frequently used in investment arbitrations, such as the ICSID and the UNCITRAL Arbitration Rules. As some changes have been more successful than others, the article concludes by an examination of how parties and arbitrators could assist in achieving efficiency gains in investment arbitration.

Algunas Reflexiones Sobre el Arbitraje Comercial Internacional en Latinoamérica y los Estados Unidos: Aspectos Comparados (Reflections on International Commercial Arbitration in Latin America and the United States: Comparative Aspects)
Diké, Vol. 3, No. 1, 2011,
Dante Figueroa
American University - Washington College of Law

This paper reviews several comparative aspects related to international commercial arbitration in Latin America and the United States, with a particular emphasis on the enforcement of arbitral awards in these jurisdictions.

Judicial Politics and International Investment Arbitration: Seeking an Explanation for Conflicting Outcomes
Northwestern Journal of International Law & Business, Vol. 30, No. 2, Spring 2010
David Schneiderman
University of Toronto - Faculty of Law
Date Posted: November 29, 2011

International investment arbitration has been described as a private system of justice addressing matters of high public policy. Yet, despite the very high stakes involved — in terms of both policy room and monetary implications — tribunal awards are sometimes difficult to reconcile. This conflict usually is explained with reference to the fact that these are ad hoc tribunals addressing specific disputes arising under particular investment treaties. Not so easily explained are conflicting tribunal awards drawing on virtually identical facts, invoking the same treaty text, where arbitrators seemingly change their mind from one case to the next without any explanation. This paper takes up a sequence of three tribunal awards issued against Argentina as a result of actions taken during the meltdown of the Argentinian economy in 2001. Two different arbitrators signed onto conflicting awards, each appearing to have changed their minds about whether Argentina was entitled to take advantage of the defense of necessity in the face of this economic crisis. Drawing on work in judicial politics, the paper brings in a number of non-legal variables into the analysis — such as social background, attitudinal behavior, strategic behavior, and institutional concerns — in order to illuminate aspects of arbitral decision making in the investment law context. I conclude that both strategic and institutional approaches better explain arbitral dispositions, allowing arbitrators to act in ways inconsistent with their preferred outcomes but also to self-correct.

Special Case Law of the Courts on the Relation of Arbitration and Constitutional Issues: Hungary
CZECH (& CENTRAL EUROPEAN) YEARBOOK OF ARBITRATION, pp. 293-304, A. Belohlavek & N. Rozehnalova, eds., Jurisnet, Inc., 2011
Alexander J. Belohlavek
affiliation not provided to SSRN

Arbitration in Hungary has a long standing tradition and there is also available extensive case law of Hungarian national courts regarding arbitration. It was confirmed repeatedly that courts may not intervene in arbitral proceedings in the event a valid arbitration clause exists and that arbitration courts and arbitral institutions are not a part of the judiciary and not subject to the oversith authority of the Supreme Court of Hungary (for instance decision of the Supreme Court of Hungary as from 2001). A full authonomy of the Parties has been confirmed by the court practise in respect to the annulment proceedings as a demand for the annulment of an arbitral award may only be made by a party to the particular arbitral proceedings or by a person that is subject to an abligation imposed by the arbitral award, provided that the arbitral award has been delivered to such a person. The Hungarian courts (or any authority) are therefore not entitled to set-aside an award ex officio (Ruling of the Péct Reginal Court as of 2006). The same decision confirmed inter partes effects of arbitral awards.

Very interesting judgment has been issued by Debrecen Regional Court in 2006. The court stated that If an enforceable arbitral award has the nature of a court judgment for the purposes of its enforcement, regulations pertaining to the enforcement of court rulings may be applied to such an award, including a mutual legal assistance (rogattory) treaty (in this case, an agreement between Hungary and Ukraine) that guarantees the enforceability of court judgments. Due to the nature of an arbitral award, which is qualified as identical to a court judgment for enforcement purposes, regulations pertaining to the enforcement of foreign arbitral awards (in this case, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards) are used together with regulations pertaining to the enforcement of court judgments, where those regulations apply that allow recognition and enforcement to a larger extent.

Extraordinarity of public policy issues has confirmed the Supreme Court of Hungary in 2006 when ruling that in arbitral proceedings, it is permissible to restrict some constitutional rights with regard to the process of law finding. Public policy violation only as an especially serious violation of rights. Arbitration restricts or excludes, in a constitutionally conforming manner, certain fundamental rights guaranteed by the constitution with regard to legal protection. An assertion claiming the absence of fair and impartial trial in arbitration does not mean that the public policy of [Hungary] has been violated at the same time. A violation of fundamental rights may represent a violation of the public policy of [Hungary]. However, a violation of public policy is committed only if fundamental principles of law are violated.

Litigating BP’s Contribution Claims in Publicly Subsidized Courts: Should Contracting Parties Pay Their Own Way?
Vanderbilt Law Review, Vol. 64, No. 6, 2011
Bruce L. Hay , Christopher Rendall-Jackson and David Rosenberg
Harvard Law School , affiliation not provided to SSRN and Harvard Law School

In this Article, we focus on an important problem involving mass-accident cases that was highlighted by the Deepwater Horizon litigation: overuse of courts to enforce contribution claims. These claims seek to shift incurred or expected liability and damages between the business and governmental entities that participated in the activity that gave rise to the mass-accident risk. Participants in such ventures generally have the option to determine by contract beforehand whether to subject themselves to contribution claims and, if so, whether such claims will be resolved by a publicly funded court or by a privately funded process, such as arbitration. Because the parties prosecuting and defending against contribution claims can consume judicial resources largely free of charge, it is likely they will choose to litigate in court to a greater extent than is socially desirable. We consider whether courts can effectively realign the parties’ incentives by charging them for the cost of using the judicial process. Taking account of the public good of judicial precedent-making, we advance a user-fee design that allows courts to waive the fee in whole or in part for contribution claims that present substantial questions of law. Analysis of the proposal’s application is extended generally to commercial contract disputes. Our central conclusion is that an appropriately designed user fee can effectively abate the problem of overuse without adversely affecting the functioning of the civil liability system.

Private Resolution of Public Disputes: Employment, Arbitration, and the Statutory Cause of Action
Pace Law Review, Winter 2011
Griffin Toronjo Pivateau
Oklahoma State University

The Supreme Court recently reaffirmed its commitment to honoring arbitration clauses in employment agreements. In Rent-A-Center v. Jackson, the Court found that courts should treat arbitration agreements in the employment context in the same manner as arbitration agreements found in any commercial contract. The Rent-A-Center result was not surprising. In recent years, the Supreme Court has faced the issue of mandatory arbitration agreements numerous times and, in virtually every case, favored arbitration. The Court has proved willing to cast aside or ignore precedent in its pursuit of a pro-arbitration policy.

In favoring arbitration clauses in employment agreements, the Supreme Court has relied on general contract principles. Essentially, the Court has found that, if an employee has agreed to have his statutory discrimination heard in a private forum, then that employee should stick with the deal.

But relying on general contract principles to decide a matter involving the employment relationship is disingenuous. In fact, the standard employment agreement bears little relationship to the traditional contract. It is not the employment agreement, but statutes that furnish the majority of the duties and obligations of an employment relationship. Numerous areas of the employment relationship are constrained by public law and therefore not subject to contract. The typical employment agreement governs relatively minor areas — things like salary and benefits. The most important aspects of the employment relationship — occupational safety and health, minimum wage, overtime pay, discrimination — exist independently and cannot be waived in contract.

There is a particular aspect of the employment relationship that, while open to contract, remains subject to constraints imposed by the law. A noncompete agreement permits an employee to contract with his employer to not work for a competitor following the termination of the employment relationship. This right to contract away the right to compete is, however, narrowly construed by the court system. A court may not enforce a noncompete agreement unless the agreement meets a standard of reasonableness. I propose that this same analysis be applied to arbitration agreements. It is my position that a pre-dispute, mandatory arbitration agreement should not be enforced unless it meets certain requirements that together make the agreement reasonable. This standard of reasonableness will protect the interests of all parties: the employer, the employee, and society as a whole.

Das neue Internationale Privatrecht der Volksrepublik China: Nach den Steinen tastend den Fluss überqueren (The New Private International Law of the People's Republic of China: Crossing the River by Feeling the Stones) (German)
Rabels Zeitschrift für Ausländisches und Internationales Privatrecht, Forthcoming , Max Planck Private Law Research Paper No. 11/14,
Knut Benjamin Pissler
Max Planck Institute for Comparative and International Private Law

On October 28, 2010, the “Law of the Application of Law for Foreign-related Civil Relations” was promulgated in the People’s Republic of China. The law aims to consolidate the Chinese conflict of laws regime and signals a new step towards a comprehensive codification of civil law in China.

The promulgated law emphasizes party autonomy and the closest connection as general principles. The law furthermore replaces nationality with habitual residence as the principal connecting factor for personal matters in Chinese private international law. However, some lacunas remain and new questions arise from the law. The legislative gaps concern the form of legal acts, the maintenance duties after divorce as well as the assignment and transfer of rights and duties in general. New questions arise from the provisions in the law establishing alternative connecting factors. Regarding the free choice of law with regard to rights in movable property provided by the law, it is additionally questionable how the rights of third parties are protected where they are not aware of such a choice of law. The decision of the legislator to exclude renvoi will force Chinese courts to apply foreign law even if the foreign private international private law refers back to Chinese law.

Some of the particular provisions in the law are also a source for further problems: This concerns the application of the lex fori in divorce cases, the conflict of laws rule on trusts and arbitration clauses as well as on agency. Another point of uncertainty stems from older provisions of international private law that can still be found in several laws such as the Maritime Commercial Law, the Civil Aviation Law or the Contract Law. Those norms are still in force formally, but their relation to the new law is not sufficiently clarified.

Arbitrator Power to Sanction Bad Faith Conduct: Can it Be Limited by the Arbitration Agreement?
Australian Law Journal, Vol. 84, p. 82, February 2010, Loyola University Chicago School of Law Research Paper No. 2011-036
Margaret L. Moses
Loyola University of Chicago - School of Law Loyola University Chicago School of Law

To what extent can the parties to an arbitration agreement limit an arbitrator’s power to impose sanctions? Because the arbitrator’s power arises from the agreement of the parties, it would seem that if the parties placed an express limitation on the arbitrator’s power in the arbitration clause, the arbitrator could not exceed that limitation. However, in ReliaStar Life Ins. Co. of N.Y. v. EMC Nat’l Life Ins. Co., the Second Circuit upheld an arbitrator’s decision imposing attorneys’ fees on one party, despite an express provision in the arbitration clause that each party would bear its own costs and fees. The arbitrator’s decision to allocate fees against the losing party was based on his conclusion that the party acted in bad faith. In upholding the award, the Second Circuit reasoned that the parties’ agreement about equal allocation of costs and fees could be fairly understood as based upon “the expected context of good faith dealings.” Thus, because the assumption underlying the agreement was that both parties would act in good faith, when one party did not act in good faith, the clause did not prevent the tribunal from imposing a sanction. In dictum, the Second Circuit declared that if parties clearly wanted to limit an arbitrator’s power, they could do so by stating explicitly that a reallocation of costs would not be permissible even if there were a finding of bad faith. Although the Second Circuit’s basic decision seems justified, its dictum saying that parties could contract out of certain sanctions for bad faith conduct appears more problematic, given the mandatory obligation under state law for parties to act in good faith.

The End of Shareholder Litigation: Using Bylaw or Charter Amendments to Require Binding Arbitration of Shareholder Disputes
Paul D. Weitzel
affiliation not provided to SSRN

This paper analyzes whether a bylaw or charter provision that requires arbitration for all shareholder disputes would be enforceable. I find that it would and provide a model provision for inclusion in the charter or bylaws.

Proposal for a Regulation of the European Parliament and of the Council on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast)
Ilaria Pretelli
University of Urbino Carlo Bo

Non-Proliferation Law & Countermeasures: Their Function and Role in Determining the Status of a Special Regime
NONPROLIFERATION LAW AS A SPECIAL REGIME, D. Joyner & M. Roscini, eds., Cambridge University Press, 2012
Sahib Singh
University of Vienna, Faculty of Law

This paper examines the rhetoric of fragmentation, specifically the nuanced notion of ‘special regimes’ (as opposed to self-contained), in the context of non-proliferation law and rules relating to countermeasures. The general question which is asked and answered is: what is the extent to which non-proliferation law, and the special obligations and institutional mechanisms created by the governing treaties, enables, limits or otherwise modifies the right to resort to countermeasures under general international law? An extension of the question that Rapporteur Arangio-Ruiz asked in the ILC in 1992, this piece reviews the large of non-proliferation rules to answer three sub-questions: (a) who has standing to take countermeasures in relation to non-proliferation obligations; (b) when can a state take recourse to countermeasures under general international law, given the existence and content of special non-proliferation rules and institutional mechanisms; and (c) what countermeasures may a state take, given the nature of the regime, its practicalities and the nature of some of its obligations.

The finding of this paper is that non-proliferation law possesses distinct legal characteristics and distinct legal rules both of which impact, varyingly, on the resort to countermeasures in this area of law. First, the paper critiques the ILC’s direct and overly simplistic importation of the notion of ‘interdependent obligations’ from its work on the law of treaties, to its work on state responsibility, and specifically Article 42(b)(ii) of the ILC Articles on State Responsibility. This has led to a conflated understanding of which non-proliferation obligations, upon breach, enable a decentralized, third-state party, response in the form of countermeasures. The paper concludes, that under a strict reading of doctrine, only a very few substantive non-proliferation obligations, and certainly not the majority let alone the procedural and peaceful use obligations, would qualify as interdependent obligations. Accordingly, whilst non-proliferation law is traditionally considered susceptible to decentralized responses (as ample practice demonstrates), this is not consistent with a reading of the law. Second, the paper applies the Air Services Arbitration test to whether the existence of extensive institutional frameworks should condition the resort to countermeasures. It concludes that in the case of the majority of non-proliferation treaties, such frameworks and not mandatory pre-requisites. It further identifies specific obligations contained in the CWC and CTBT that govern the taking of collective countermeasures in the general interest. Finally, this section identifies specific non-proliferation rules which limit the taking of countermeasures that emerge out of the WTO regime and UN Security Council Resolution 1929 (2010). Third, and finally, the paper concludes that what countermeasures may be taken may be curtailed by the nature of certain non-proliferation obligations, whilst the need to liberalize current international legal doctrine may emerge from the question of urgent countermeasures in the area of non-proliferation law.

In short, the paper concludes, that despite evidence of special characteristics and special rules governing countermeasures, non-proliferation law cannot be considered a special regime. The paper does however seek to provide a pragmatic view of the way in which countermeasures may be taken, in accordance with the law, in the diverse area of non-proliferation law.

Nor-Man Regional Health Authority: Labour Arbitration, Questions of General Law and the Challenge of Legal Centrism
Manitoba Law Journal, 2011
Gerald Heckman
Osgoode Hall Law School - York University University of Manitoba

Recognizing labour relations as “a discrete and special administrative regime” in which decision-makers have “special expertise”, and giving effect to statutory privative causes, Canadian courts have reviewed on a deferential “reasonableness” standard the decisions of arbitrators relating to the interpretation of collective agreements and their enabling statutes. But is a deferential approach to review appropriate when, in resolving an industrial dispute, an arbitrator has regard to norms articulated by the courts in a context – the law of commercial contracts – unlike that of labour relations? More specifically, does the invocation of principles of promissory estoppel in an arbitral award remove it from the arbitrator’s area of expertise and expose it to correctness review by the courts? In terms of the framework for substantive review set out by the Supreme Court of Canada in Dunsmuir and, in particular, its guidelines with regard to questions that will be reviewed on a correctness standard, does an arbitrator’s reliance on principles of promissory estoppel raise a question of general law that is both of central importance to the legal system as a whole and outside the arbitrator’s specialized area of expertise?

This question was the focal point of the Manitoba Court of Appeal’s decision in Manitoba Assn. of Health Care Professionals v. Nor-Man Regional Health Authority Inc., an appeal of which was recently heard by the Supreme Court of Canada. After reviewing the facts of this case, including the arbitrator’s award and the judgments on review, I critically assess the Court of Appeal’s choice of the intrusive correctness standard of review. I argue that the Court unduly extends the concept of “question of law of central importance to the legal system”, overlooks the important influence of labour relations policy in shaping the principles of estoppel applicable in the context of grievance arbitration and undermines the successful operation of labour arbitration as an autonomous legal regime.

Antisuit Injunctions in Support of International Arbitration
Tulane Law Review, Vol. 81, p. 395, 2006
Steven R. Swanson

This article analyzes the controversial issues that erupt when parties to an international arbitration agreement try to avoid either their obligation to arbitrate or the enforcement of an arbitral award. In such cases, one party may seek to enjoin the arbitration process or annul the award. Seeking to prevent the issuance of the injunction or annulment, the opposing party may ask a United States court to grant an antitrust injunction against the foreign litigation. This article examines the policies that a court should consider in deciding whether to issue the injunction. The first is international comity, a doctrine of judicial restraint that requires courts to respect other countries’ laws and judicial decisions in order to further international dispute resolution. The second policy concerns the favorable treatment that international arbitration has enjoyed in the United States since this country passed the Federal Arbitration Act and ratified the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Since then, the courts have reconsidered the intersection of comity and proarbitration bias in the international arbitration antisuit context. The article’s thesis accordingly supports arbitration as a means for resolving international commercial disputes while upholding the integrity of comity in the transnational context.

Reform of Investor-State Arbitration: A Perspective from Canada
Gus Van Harten
London School of Economics - Law Department York University - Osgoode Hall Law School affiliation not provided to SSRN

The article presents a model for reform of investor-state arbitration aimed at enhancing institutional safeguards of independence in the system. The model is based on the person-to-government adjudicative mechanism in Canada's Agreement on Internal Trade. The article also summarizes the win-loss record of Canada and of Canadian investors in investor-state arbitration.

The War Against Arbitration in Montana
Montana Law Review, Vol. 66, p. 139, 2005
Scott J. Burnham
Gonzaga University School of Law

Until it was preempted by federal law in the 1980s, a Montana statute declared an arbitration clause in a contract to be illegal and unenforceable. After the repeal of that statute, other statutes regulated the arbitration clause. These statues were the subject of the US Supreme Court decisions in Casarotto v. Lombardi. Even after those decisions upheld arbitration, the Montana Supreme Court continued to uphold challenges to the enforceability of arbitration clauses. This article surveys the history of this “war” on arbitration in Montana, concluding that the Montana Supreme Court should cease its efforts to regulate this area of contract law.

Examining Newfound Tolerance for International Arbitration in the Developing World: An Illustration of the Nexus between Law and Development
Antonius Rickson Hippolyte
University of Hull

This paper seeks to correlate low FDI inflows in many developing countries and their prejudice against international arbitration. Many developing countries lack the capital needed to finance their many projects. This has impacted heavily upon the ability of these countries to realize their economic goals, highlighting the need for FDI. Foreign investors will often undertake the financing of these projects in return for a share of the proceeds. One condition for providing finance, however, is often the need for a stable investment climate. Sources reveal that one essential feature is a legal system, which is conducive to enforceable and neutral dispute settlement. International arbitration is currently the only viable option. Nonetheless, many developing countries are intolerant of this dispute settlement mechanism. This paper contains five chapters. It identifies the main usage of international arbitration in the South, concluding that it is mainly used to settle investment disputes. It considers why countries dislike arbitration, highlighting that notwithstanding past malice; embracing it will lead them to realize their full commercial potential. It highlights that a legal system or one or more of its components, which is not conducive to international arbitration, has been known to create problems in promoting this dispute settlement mechanism. Thus the paper argues that a country’s legal system must be conducive to international arbitration, if the latter is to be effectively utilized in the developing world. There are many benefits associated with the acceptance of international arbitration. Foremost is the ability to attract greater levels of FDI, which will contribute to the economic development plan of the host country; but the fear of bias has to be displaced if any benefits are to be realized. Thus, this dissertation concludes that, bias against international arbitration can indeed hinder the ability of the South to effectively participate in the global economy.

Keynote: Before and After the Summary Judgment Trilogy
Loyola University Chicago Law Journal, Vol. 43, 2012
Suja A. Thomas
University of Illinois College of Law

In this keynote speech for the Seattle University School of Law Colloquium on the 25th Anniversary of the Summary Judgment Trilogy: Reflections on Summary Judgment, Professor Suja Thomas discusses access to courts and juries before and after the summary judgment trilogy. Following up on debate in the academic literature on the effect of the trilogy on summary judgment, Professor Thomas explores influences on the trilogy and influences of the trilogy outside of summary judgment. She first describes Supreme Court decisions on judgment notwithstanding the verdict, remittitur, and the directed verdict, which helped set the stage for the trilogy. She then explores access after the trilogy. Professor Thomas describes how access to courts and juries continued to decline through the Supreme Court’s decisions on arbitration and the motion to dismiss. Professor Thomas gives all of these procedures some context by showing their effect on one class of factually intensive cases — employment discrimination cases. She concludes by introducing the concept of “the Other Branch” and states that access to courts and juries can possibly increase if the jury is viewed in this manner.

Planning for International Dispute Resolution
Journal of International Arbritration, Vol. 17, No. 3, pp. 61-72, 2000
Gary B. Born
affiliation not provided to SSRN

This article summarizes the considerations involved in selecting and negotiating international dispute resolution provisions, particularly in commercial settings. It examines the consideration relevant to choosing international forum selection agreements and international arbitration agreements.

The Principle of Judicial Non-Interference in International Arbitral Proceedings
University of Pennsylvania Journal of International Law, Vol. 30, No. 4, 2009
Gary B. Born
affiliation not provided to SSRN

The principle of judicial non-interference in international arbitral proceedings is a central pillar of contemporary international arbitration. The existence of interlocutory challenges or appeals from arbitrator's procedural decisions would have damaging consequences for the arbitral process. To prevent these consequences, both the New York Convention and national arbitration legislation either expressly or implicitly adopt a principle of judicial non-interference in international arbitral proceedings. This article examines the bases and application of this principle.

Behavioral Merger Remedies: Evaluation and Implications for Antitrust Enforcement
John E. Kwoka, Jr. and Diana L. Moss
Northeastern University - Department of Economics and American Antitrust Institute

The 2011 revision to the Antitrust Division Policy Guide to Merger Remedies signals a shift in the Department of Justice’s approach to merger remedies. The earlier Remedies Guide, issued in 2004, emphasized structural remedies such as divestitures as the preferred approach to resolving competitive problems with mergers. In contrast, the 2011 revision is considerably more favorably disposed toward the use of behavioral remedies that proscribe specified anticompetitive behaviors of the merged companies. This apparent policy shift is illustrated by the behavioral remedies employed by the DOJ in three recent merger cases – Ticketmaster-Live Nation, Comcast-NBCU, and Google-ITA. These three cases involve the use of multiple behavioral remedies, ranging from access conditions (e.g., licensing and non-discrimination requirements), firewalls, anti-retaliation provisions, to arbitration requirements, and provide for monitoring and compliance enforcement.

The expansive new approach to behavioral remedies raises a number of concerns about their likely operation, effectiveness, and requirements for ongoing government monitoring and compliance enforcement. Many of these issues are similar to problems encountered in traditional industry regulation, ranging from countervailing incentives to implementation costs. Behavioral remedies also pose practical problems for antitrust enforcement. This paper identifies a number of issues that warrant attention and prompt some concern. Based on this early analysis, a number of observations and policy recommendations are offered.

Public Policy and Setting Aside Patently Illegal Arbitral Awards in India
Badrinath Srinivasan
Bharat Heavy Electricals Limited

The Indian Arbitration and Conciliation Act, 1996 was enacted for the purpose of making the law of dispute resolution in tune with the international economic scenario. The Act was hence modelled on the basis of the UNCITRAL Model Law on International Commercial Arbitration, 1985. The Model Law was based on the philosophy of limited grounds for setting aside arbitral awards at the legal seat of arbitration and the grounds are almost identical to those of the New York Convention for refusal to recognise or enforce foreign awards. The same philosophy was adopted in the Indian context under Section 34 of the Act. One of those grounds is public policy, by virtue of which, any award rendered by the arbitral tribunal that is contrary to the public policy of India could be set aside.Initially, the courts in India interpreted this ground of public policy in a sumptuary manner, in consonance with practice in various countries. In Oil and Natural Gas Corporation Ltd. v. SAW Pipes Ltd., however, the Supreme Court broadly read the ground of public policy to the consternation of many lawyers and stakeholders of the arbitral process.The reason for their anguish was that in SAW Pipes, the Court held that an award could be set aside if it was patently illegal. The SAW Pipes decision has been criticised for subverting the arbitral process and for being in contradiction to the policies contained in the Act, especially the policies of finality of awards and minimum judicial intervention into the arbitral process.However there are many who argue in support of SAW Pipes for expanding the notion of public policy and specifically for reading patent illegality into public policy. The supporters of the latter view argue that commercial arbitration cannot exist in the area of lawlessness and the arbitral award should not be free from scrutiny. The legal fraternity has argued either for a broad notion of public policy without giving due regard to the promptness of the arbitral process in dispensing justice or for a swift arbitral process without due regard to the role of public policy in the arbitral process. Placing this issue in the form of a dichotomy leads to problems. Hence, this paper attempts to (1) find out what are the merits of having a broader notion of public policy in connection with setting aside arbitral awards, as contemplated by SAW Pipes; (2) look into the possible problems that could crop up because of a SAW Pipes type reading of public policy in Section 34(2)(b)(ii) of the Act, especially the effect on the finality of arbitral awards in an era of globalisation; and (3) find out if the problems created by a wide reading of the term public policy in Section 34(2)(b)(ii) could be eliminated.

Annulment and Court Intervention in International Commercial Arbitration
Loic E. Coutelier
Stanford Law School

By choosing the arbitral forum, parties to a contract agree to have their disputes resolved by an independent third party rather than by national courts. However, national courts still play an essential role in modern international commercial arbitration by ensuring the smooth process and supplementing the parties’ failures to agree on various procedural points. One area that remains highly contentious is the annulment of awards – i.e., the decision of the courts of the seat of arbitration to invalidate the arbitral award – and the effect of that decision on the enforcement of the same award by other courts. Despite arbitration’s increased popularity, unforeseen issues have arisen and the enforcement of annulled awards has awaken old debates regarding the very nature of arbitration and the interplay with national Courts.

Very few countries have had to make a decision regarding the enforcement of vacated awards: they all embraced the idea that under certain circumstances, annulled awards should be granted exequatur. Interestingly enough, these courts used different justifications for enforcing the award. Some will do so if the annulment decision violates principle of fairness and justice. Others argue that an award should be deemed enforceable unless it was set aside based on international standards of annulment. The most innovative and most advanced theory proclaims that annulment should not have effects abroad as awards are not part of the courts’ system. As a result, the validity of the award should be left to the enforcing court only.

This article looks at the different positions adopted by the countries party to the New York Convention, only to confirm that no transnational approach to the issue of the international effectiveness of annulment decisions exists under the Convention. Although a growing majority of authors concludes that the absence of consensus on the New York Convention’s position vis-à-vis the enforcement of annulled awards warrants its revamping (if not its replacement), this article argues that such a drastic step is not necessary, especially if the Guide on the Convention currently being prepared by UNCITRAL provides for the dynamic interpretation that is needed.

Sailing the Muddy Waters of Arbitration in China
Loic E. Coutelier
Stanford Law School

This paper intends to bring international arbitration practitioners’ attention to a certain number of key aspects of Chinese arbitration. After a brief but necessary introduction of the (I) Chinese arbitration legal framework, this paper will examine how practitioners shall address the (II) unsettling rules governing the validity of the arbitration agreement under Chinese law, the (III) absence of the competence-competence principle, the (IV) disturbing distinction between domestic and foreign-related awards, and the (V) issues relating to the enforcement of foreign-related and foreign awards in the PRC. Finally, the presentation of this practitioners’ guide to arbitration in China would not be complete without a section on (VI) CIETAC arbitration.

Comment (on Managing the Rule of Law in the Americas)
University of Miami Inter-American Law Review, Vol. 42, No. 3, 2011
Zachary D. Kaufman
George Washington University

This piece is published by invitation in a special symposium issue of the Inter-American Law Review entitled “The Impact of Regional Trade Agreements on Human Rights and the Rule of Law.” The piece responds to an article, published in the same issue, by Professor Stephen Powell and Dr. Ludmila Mendonça Lopes Ribeiro entitled “Managing the Rule of Law in the Americas: An Empirical Portrait of the Effects of 15 Years of WTO, MERCOSUL, and NAFTA Dispute Resolution on Civil Society in Latin America.” Professor Powell and Dr. Ribeiro's article provides background on and analysis of global (GATT and WTO) and regional (NAFTA and MERCOSUL/MERCOSUR) trade regimes concerning North and South America.

The piece proposes a future research agenda using Professor Powell and Dr. Ribeiro’s article as a starting point. The avenues for such research this piece explores include: further primary research, causation versus correlation, identities of parties and panelists, regions beyond the Americas, politically-motivated cases, institutional proliferation, and a policy proposal concerning “extraordinary delays” in bi-national panels. These avenues of research involve trade, comparative area studies, U.S. foreign policy, and multilateralism

Enforcement of International Arbitration Agreements in Chinese Courts
Arbitration International, Vol. 25, No. 4, pp. 569-590, 2009
Yongping Xiao

This article discusses selected topics on the enforcement of international arbitration agreements in Chinese courts, i.e. standard of reviewing the arbitration agreement; the law applicable to and the scope of the arbitration agreement; and referral to arbitration at the case filing and post-filing stage, as well as in multi-party proceedings. Chinese courts rarely deal with issues which may lead to full inquiry into the parties’ intent. Yet when Chinese law applies to the arbitration agreement, Chinese courts engage in more detailed review of the arbitration agreement than when foreign law applies. Usually, the formal validity of an arbitration agreement is regulated by Article II of the (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards which requires agreements in writing. It is an open question whether an arbitration agreement can be enforced by Chinese courts if it does not meet the form requirement of Article II, but satisfies the more lenient requirements of Chinese law. In recent practice, the substantive validity of an arbitration agreement is often governed by, in order of priority, the law chosen by the parties, the lex loci arbitri, or the lex fori. There seems to be an increasing consensus among Chinese courts that interpretation of scope of the arbitration agreement should not be based on the plaintiff ’s chosen classification of the disputes. In interpreting the scope of an arbitration agreement, Chinese courts now tend to give equally broad interpretations to terms such as ‘disputes in respect of ’, ‘disputes arising under’, ‘disputes arising out of ’, ‘disputes arising from’, etc. Referral to arbitration by Chinese courts can take place at two stages. At the case filing stage, an arbitration agreement should be reviewed by Chinese courts ex officio, but upon the parties’ request at the post-filing stage. Allocation of burden of proof in establishing a valid arbitration agreement deserves attention. Referral to arbitration encounters difficulties in cases involving counterclaims, and in multi-party proceedings concerning a compulsory joinder of parties to the arbitration agreement and a third party.

Enforcement of International Arbitration Agreements in Chinese Courts
Arbitration International, Vol. 25, No. 4, pp. 569-590, 2009
Yongping Xiao and Weidi Long
affiliation not provided to SSRN and Wuhan University - Institute of International Law

This article discusses selected topics on the enforcement of international arbitration agreements in Chinese courts, i.e. standard of reviewing the arbitration agreement; the law applicable to and the scope of the arbitration agreement; and referral to arbitration at the case filing and post-filing stage, as well as in multi-party proceedings. Chinese courts rarely deal with issues which may lead to full inquiry into the parties’ intent. Yet when Chinese law applies to the arbitration agreement, Chinese courts engage in more detailed review of the arbitration agreement than when foreign law applies. Usually, the formal validity of an arbitration agreement is regulated by Article II of the (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards which requires agreements in writing. It is an open question whether an arbitration agreement can be enforced by Chinese courts if it does not meet the form requirement of Article II, but satisfies the more lenient requirements of Chinese law. In recent practice, the substantive validity of an arbitration agreement is often governed by, in order of priority, the law chosen by the parties, the lex loci arbitri, or the lex fori. There seems to be an increasing consensus among Chinese courts that interpretation of scope of the arbitration agreement should not be based on the plaintiff ’s chosen classification of the disputes. In interpreting the scope of an arbitration agreement, Chinese courts now tend to give equally broad interpretations to terms such as ‘disputes in respect of ’, ‘disputes arising under’, ‘disputes arising out of ’, ‘disputes arising from’, etc. Referral to arbitration by Chinese courts can take place at two stages. At the case filing stage, an arbitration agreement should be reviewed by Chinese courts ex officio, but upon the parties’ request at the post-filing stage. Allocation of burden of proof in establishing a valid arbitration agreement deserves attention. Referral to arbitration encounters difficulties in cases involving counterclaims, and in multi-party proceedings concerning a compulsory joinder of parties to the arbitration agreement and a third party.

Arbitral Proceedings and Principles of Natural Justice
Rustam Singh Thakur and Divya Soni
Hidayatullah National Law University and Hidayatullah National Law University

In India, there is no particular statute, laying down the minimum standard, which the judicial or quasi judicial bodies must follow while exercising their decision making powers. The principles of natural justice have been developed by the courts, in order to secure fairness in judicial functions. These principles are the Common Law counterpart of the ‘due process of law’ in the Constitution of the United States.

The doctrine of natural justice pervades the procedural law of arbitration as its observance is the pragmatic requirement of fair play in action. In a case before the United States Supreme Court, a Jackson J. said: ‘Procedural fairness and regularity are indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied’. ‘The doctrine of natural justice seeks not only to secure justice but also to prevent miscarriage of justice.’

An arbitral tribunal is not bound by the procedure set out in the Code. It is for the parties to agree on a procedure, and if the parties are silent, then the arbitrator has to prescribe the procedure. The procedure so prescribed, however, should be in consonance with the principles of natural justice. The violation of principles of natural justice would amount to be contrary to the public policy of India. The arbitral tribunal discharging quasi judicial functions is expected to be fair and impartial in the arbitral proceedings.

Principles of Natural Justice have been defined to mean 'fair play in action.' They constitute the basic elements of a fair hearing, having ties roots in the innate sense of man for fair play and justice, which is not the preserve of any particular race or country but is shared in common by all men.

This article asserts that such a statutory provision being violative of the principles of natural justice should be struck down as being unconstitutional and bad in law. The procedure has to be modified by providing an option for referring the matter to a Court of law or other institutional arbitration bodies consisting of unbiased judges and arbitrators respectively.

Jurisdiction Ratione Personae and Corporate Nationality in International Investment Arbitration - Legitimate Corporate Planning or Abuse of Right?
Rimantas Daujotas
affiliation not provided to SSRN

Corporate nationality in investment arbitration was and still is an area of much debate. The number of bilateral investment agreements (BIT’s) have grown significantly over the past 20 years, including also other international agreements, such as North American Free Trade Agreement (NAFTA) or Energy Charter Treaty (ECT), the purpose of which is to encourage international investment. The vast net of international investment agreements (IIA’s) had enabled investors to structure and take advantage of the specific IIA’s, which secure their objectives in the host country, by using shell or so called “mailbox companies.” This process can also be defined as “treaty shopping.” However, such practice had brought a lot of controversy and conflicting views in academic and business society. Therefore, the main question that must be analysed is whether the use of corporate nationality is actually an abuse of right, or, conversely, it is legitimate for international investors to structure their investments in the way that is most suitable for their goals. Much of the answer for the later question rests on the way of interpretation of the investment agreement. Accordingly, the interpretation methods of the IIA’s should be analysed, taking into account the standing and context of general international law in foreign investment disputes. In addition, the ways for the host countries to defend from the increasing number of arbitration requests and “treaty shopping” practice must be identified in order to shift investment arbitration back to its original tracks and purpose – encouragement of the international investment.

The Role of Arbitrators in International Maritime Arbitration
FESTSCHRIFT FÜR DIETER LEIPOLD ZUM, R. Stürner, H. Matsumoto, W. Lüke & M. Deguchi, eds., Mohr Siebeck, 2009,
Carlos Esplugues Sr.
University of Valencia - Faculty of Law

International Maritime Arbitration is a very trendy and relevant area of law. Internation Maritime Arbitration is a specific sort of Arbitration with its own issues and controversies, many of them highly relevant for international commercial arbitration in general. The article explores in a practical and critical manner singularities existing as regards the role arbitrators play in International Maritime Arbitration and the differences embodied in relation to other kind of international arbitrations.

Recognition and Enforcement of Foreign Arbitration Awards in Spain and Public Policy
Carlos Esplugues Sr.
University of Valencia - Faculty of Law

Recognition and enforcement of foreign arbitration awards is a very relevant and trendy issue. The article analyzes in depth the existing Spanish case-law regarding the recognition and enforcement of foreign arbitration awards.

Arbitration Agreements in International Arbitration: The New Spanish Regulation
Yearbook of Private International Law, Vol. X, 2008
Carlos Esplugues Sr.
University of Valencia - Faculty of Law

International commercial arbitration is based on the existence of a valid arbitration agreement. At the same time, the agreement sets forth the limits of arbitration. The Spanish Act on Arbitration of 2003 includes a highly complex and sofisticated complex regulation as regards the arbitration agreement in International Commercial Arbitration in line with some other European Regulations.

Subjective Reasons of Gross Disparity and the Presumption of Professional Competence: A Contradiction in the Lex Mercatoria?
Murdoch University eLaw Journal, Vol. 15, No. 1, p. 94, 2008
Cemil Ahmet Yildirim
affiliation not provided to SSRN

The article 3.10 of the UNIDROIT Principles flamed a traditional debate among legal writers which reflects to a contradiction between two general principles of international commercial law: On the one hand, the presumption of professional competence of international businessmen is a well established principle of the new lex mercatoria. On the other hand, the article 3.10 of the UNIDROIT Principles, which was drafted by eminent professors of international commercial law recognizes a remedy to the parties which sign a disadvantageous contract because of their 'improvidence, ignorance, inexperience or lack of bargaining skill.'

What was the aim of the drafters of this article? Does the Art.3.10 really provide that, after conclusion of an international commercial contract, one of the parties to whom the concluded price does not please may rescind the contract with the pretext of his 'improvidence, ignorance, inexperience or lack of bargaining skill'? Is the purpose of the presumption of professional competence of international businessmen to enforce an unfair contract in all circumstances, even if the unfairness is caused by the fact that the more powerful party has benefited from the weakness of the other?

I briefly argue in this article that these two principles do not necessarily have to be read in a contradiction, because they are based on different traditions and they are still useful for different purposes. We need, then, to propose an interpretation to read both Art.3.10 and the presumption of professional competence of businessmen so that they do not contradict each other.

In this article I aim to propose a complete and useful reading of these concepts. To do that, I study first the evolution of the concept of contractual equilibrium, with a short look at comparative law, and then I examine the arbitral case law on the application of the presumption of professional competence with particular attention to its relations with the rigidity of the pacta sund servanda rule and gross disparity.

Some Current Developments in International Maritime Arbitration
THE HAMBURG LECTURES ON MARITIME AFFAIRS 2007-2008, J.Basedow, U. Magnus, and R. Wolfrum, eds., Springer, 2009
Carlos Esplugues Sr.
University of Valencia - Faculty of Law

International Maritime Arbitration is a very trendy and relevant area of law. Internation Maritime Arbitration is a specific sort of Arbitration with its own issues and controversies, many of them highly relevant for international commercial arbitration in general. The article explore in a critical manner singularities existing as regards the validity of arbitration agreements, the role played by arbitrators, the organization of arbitration, among some others.

Sunday, November 27, 2011

SSRN: Weekly Round up of Articles on Constitutional Law

Separation of Powers Under the American Legal System and Islamic Law

Mohamed Abdelaal

Indiana University, School of Law, Indianapolis; Alexandria University - Faculty of Law


Separation of Powers is well-established principle in all modern-democratic legal systems. In the abstract, this principle is a constitutional principle in which every state is eager to draw its features in its own constitution.

The Separation of Powers is a term that invented by the French political philosopher Baron de Montesquieu after being first introduced by the ancient Greeks and developed by the Roman Empire.

The principle is a mere attempt to a draft a model of governance that reinforces the democratic aspects in the state by dividing the state into three branches “executive, legislature, and judiciary”. The principle is to arm each branch with some tools whereby each branch can check the powers of the other and guarantee that no branch will intervene in the functions of the other.

In this paper, the author expound briefly the borders of this principle in both the American Legal System and Islamic Law, in an attempt to shed light over the emergence of this principle and the mechanism that shapes its working field in the two systems.

Governance, Accountability and the Market in Hungary's New Fundamental Law

Marton Varju

University of Hull - School of Law


In 2010 and 2011, Hungary enjoyed the privilege of drafting a new constitution in which the complexities of modern Hungarian society, the demands concerning the regulation of the economy and society, the new arrangements for the use of public power and accountability, and the constitutional responses to the challenges of European and global governance could be expressed. The declared intention was to create a constitution which would conclude the 20 years of transition, and provide the fundamental political, legal and social arrangements for a fresh start. In this process, the drafters had the advantage to consider the wealth of knowledge and experience available in global and European constitutionalism, and enjoyed the political support of a stable majority government. The conditions were ideal for a conceptually open, transparent and deliberative constitution making process. This, however, was never realized owing to the time constraints dictated by a government having set its mind to overhaul the complete constitutional system for which the new constitution would provide the foundations.

The new Fundamental Law and its disappointing provisions concerning the system of governance, accountability and the relationship between the state and the market provide an excellent opportunity to discuss the conceptual limitations of constitutions and the etymological boundaries of constitutional texts. 'Constitutions are replete with gaps, silences, and abeyances' and in developing rules and institutions mistake a part of the political, social and economic order for the whole. The main question is whether the 'fundamental mismatch' between constitutions and newer paradigms of governance and accountability could be overcome and these paradigms could be expressed in the constitutional text.

Entrenching Provisions in Australia: Are They Effective?

Mark Humphery-Jenner

University of New South Wales (UNSW) - School of Banking and Finance; Tilburg University - European Banking Center


The author seeks to analyze the Australian position on whether one ‘legislature can bind a subsequent legislature’ by passing entrenching provisions. The focus is on federal jurisdiction. Entrenching provisions (EPs) purport to insulate a statute from subsequent legislative action. They may do this by making amendments/repeals conditional on either achieving a supermajority in parliament (a super-majority EP, or SEP) and/or a pre-requisite such as a time-limit being met (a pre-requisite EP, or PEP). It is argued that: First, SEPs are invalid as contrary to Constitution Section 23 and Section 40. Second, PEPs are valid if they are ‘with respect to’ an enumerated Section 51 power. This is met if they are for the purpose of achieving the Section 51 power. This imports notions of the PEP being ‘reasonably proportionate’ to the exercise of the Section 51 power; and thus, excludes ‘extreme’ types of entrenchment, such as indefinite entrenchment. Third, there is no other implicit constitutional bar to EPs.

The Senate and the Constitution

Vikram D. Amar

University of California, Davis - School of Law

Yale Law Journal, Vol. 97, No. 6, p. 1111, May 1988


The United States Senate has largely been ignored in legal literature. No pieces have provided a systematic analysis of the Senate’s place and function in the constitutional scheme. The Senate plays a critical role both in constitutional interpretation and societal value pronouncement. In considering the Senate’s role in these areas, this essay considers four constitutional processes: legislation, impeachment, appointment and amendment. In considering the Senate’s role in these four processes, this essay will also reveal the special policy functions it was intended to perform.

Thickening the Rule of Law in Transition: Lessons from the Constitutional Entrenchment of Economic and Social Rights in South Africa

Evelyne Schmid


This chapter examines the ability of the South African Constitutional Court to apply economic and social rights (ESR) and whether the constitutionalization of ESR represents a mechanism capable of entrenching a substantive or ‘thick’ conception of the rule of law. The chapter considers ‘transformative constitutionalism’ and its ability to fulfill the ambitions of setting out to establish a society based on social justice and fundamental human rights. The South African jurisprudence after the constitutionalization of human rights, in particular ESR, has been praised by the international community. Nevertheless, the central tenets of the chapter are two cautionary findings. First, the analysis cautions against using constitutional change alone to enhance the rule of law after conflict or oppressive rule. Although constitutional adjudication in South Africa has had positive outcomes, modifying the place accorded to international law in the domestic legal system is largely insufficient for the realization of ESR and the ‘thick’ conception of the rule of law envisioned by the drafters of the 1996 Constitution. Second, the chapter finds that a domestic belief in the relevance of international and national legal norms was decisive in the South African experience. The constitutional empowerment of domestic courts to apply international legal principles would not, by itself, explain the practice of national courts insisting on the implementation of rights recognized in international law. Moreover, a number of unique factors related to the actors and process leading to the constitutional transformation in South Africa contribute to explain the remarkable transition towards an international law-friendly constitution. While the empowerment of domestic courts in South Africa provides lessons for other states, those lessons are primarily ones regarding limitations, complexities, and context-specific issues that arise in the empowerment of domestic courts to apply international legal principles in situations of transition.