Search Results

ENGLISH

Sovereign Immunity From Execution And International Arbitration - Theory & Practice

by Ylli Dautaj

~~208,03€~~ 187,23€ 10% OFF

 International Arbitration Law LibraryIn international arbitration, a State’s plea of sovereign immunity complicates post-award proceedings. In this invaluable book, the intersection of international arbitration law and the law of sovereign immunity—in particular, the back end of the arbitral procedure where a creditor is seeking to enforce an award against a reluctant debtor State—is thoroughly investigated. The author asks whether the current doctrinal understanding of sovereign immunity from execution and its interpretation and application in the international arbitration context sit well with a 21st-century global marketplace, and offers well-informed suggestions on what improvements are available.The discussion proceeds as follows:<ul><li>whether and how domestic legislators and courts have contributed to shaping the law on sovereign immunity from execution, in general, and in the arbitration context in particular;</li><li>whether and how domestic legislators and courts have facilitated award execution through procedural rules and court practices; and</li><li>whether and how non-legal and pragmatically driven solutions can assist an award-creditor when the award-debtor State refuses to comply voluntarily with a pecuniary award.</li></ul>The book engages in an in-depth analysis of the practice of the courts in seven chosen jurisdictions—primarily the United Kingdom and the United States; then France, India, and Sweden; and then in a less rigorous manner China and Russia. These jurisdictions were selected for their strong economic positioning in the contexts of commerce, trade, and investment, and also for the major global patterns they reveal of how sovereign immunity is interpreted. A comparative method is used to underscore areas of uniformity, potential for cross-fertilization, opportunities for harmonization, and where divergence persists.As an incomparable guide to the interpretation of sovereign immunity law in the international arbitration context, this book provides arbitrators, judges and policymakers with practical strategies that can be used to confront the plea of sovereign immunity. For policymakers and scholars, it offers possibilities for new tools, positions, amendments, and reforms in this challenging legal territory that attempts to balance the two legitimate interests of sovereign immunity and arbitral expectations.
ENGLISH

Sovereign Immunity From Execution And International Arbitration - Theory & Practice

by Ylli Dautaj

~~208,03€~~ 187,23€ 10% OFF

 International Arbitration Law LibraryIn international arbitration, a State’s plea of sovereign immunity complicates post-award proceedings. In this invaluable book, the intersection of international arbitration law and the law of sovereign immunity—in particular, the back end of the arbitral procedure where a creditor is seeking to enforce an award against a reluctant debtor State—is thoroughly investigated. The author asks whether the current doctrinal understanding of sovereign immunity from execution and its interpretation and application in the international arbitration context sit well with a 21st-century global marketplace, and offers well-informed suggestions on what improvements are available.The discussion proceeds as follows:<ul><li>whether and how domestic legislators and courts have contributed to shaping the law on sovereign immunity from execution, in general, and in the arbitration context in particular;</li><li>whether and how domestic legislators and courts have facilitated award execution through procedural rules and court practices; and</li><li>whether and how non-legal and pragmatically driven solutions can assist an award-creditor when the award-debtor State refuses to comply voluntarily with a pecuniary award.</li></ul>The book engages in an in-depth analysis of the practice of the courts in seven chosen jurisdictions—primarily the United Kingdom and the United States; then France, India, and Sweden; and then in a less rigorous manner China and Russia. These jurisdictions were selected for their strong economic positioning in the contexts of commerce, trade, and investment, and also for the major global patterns they reveal of how sovereign immunity is interpreted. A comparative method is used to underscore areas of uniformity, potential for cross-fertilization, opportunities for harmonization, and where divergence persists.As an incomparable guide to the interpretation of sovereign immunity law in the international arbitration context, this book provides arbitrators, judges and policymakers with practical strategies that can be used to confront the plea of sovereign immunity. For policymakers and scholars, it offers possibilities for new tools, positions, amendments, and reforms in this challenging legal territory that attempts to balance the two legitimate interests of sovereign immunity and arbitral expectations.
ENGLISH

Investment Arbitration And International Climate Change Law - Revaluing Legitimate Expectations

by Thomas Lehmann

~~213,33€~~ 192,00€ 10% OFF

 Climate change policies are triggering an increasing number of investment disputes, even as politi-cal concern grows that international investment treaties may impede climate change action. This in-dispensable book presents the first in-depth analysis of the nexus of international climate change law (ICCL) with investors’ legitimate expectations, offering practical ways to integrate ICCL in the resolution of energy investment disputes.Drawing on forty-two publicly available arbitral awards and on state-of-the-art doctrinal research, the author provides compelling new insights on the following:<ul><li>energy sector’s predominance in investment disputes;</li><li>doctrinal debates on fair and equitable treatment;</li><li>scope of energy investors’ legitimate expectations and ways to bridge divergent views;</li><li>legal compatibility of ICCL with international investment law;</li><li>impact of ICCL on energy investors’ legitimate expectations;</li><li>Energy Charter Treaty reform and whether it supports net zero objectives; and</li><li>investment arbitration as an instrument to enforce climate change commitments.</li></ul>An invaluable annex presents details of a range of energy disputes and awards, in-cluding decisions on legitimate expectations, investor due diligence, and climate change.This timely work provides key insights for arbitration practitioners and policymakers on the interplay between investment protection and climate change. The ordered structure of its presentation will be of immeasurable value to en-ergy investors and their counsel, government officials, arbitrators, and scholars.
ENGLISH

Investment Arbitration And International Climate Change Law - Revaluing Legitimate Expectations

by Thomas Lehmann

~~213,33€~~ 192,00€ 10% OFF

 Climate change policies are triggering an increasing number of investment disputes, even as politi-cal concern grows that international investment treaties may impede climate change action. This in-dispensable book presents the first in-depth analysis of the nexus of international climate change law (ICCL) with investors’ legitimate expectations, offering practical ways to integrate ICCL in the resolution of energy investment disputes.Drawing on forty-two publicly available arbitral awards and on state-of-the-art doctrinal research, the author provides compelling new insights on the following:<ul><li>energy sector’s predominance in investment disputes;</li><li>doctrinal debates on fair and equitable treatment;</li><li>scope of energy investors’ legitimate expectations and ways to bridge divergent views;</li><li>legal compatibility of ICCL with international investment law;</li><li>impact of ICCL on energy investors’ legitimate expectations;</li><li>Energy Charter Treaty reform and whether it supports net zero objectives; and</li><li>investment arbitration as an instrument to enforce climate change commitments.</li></ul>An invaluable annex presents details of a range of energy disputes and awards, in-cluding decisions on legitimate expectations, investor due diligence, and climate change.This timely work provides key insights for arbitration practitioners and policymakers on the interplay between investment protection and climate change. The ordered structure of its presentation will be of immeasurable value to en-ergy investors and their counsel, government officials, arbitrators, and scholars.
ENGLISH

Transnational Due Process And Article V(1)(B) Of The New York Convention

by Dan Xie

~~214,65€~~ 193,19€ 10% OFF

 Widely regarded as the most important ground for refusal under the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), Article V(1)(b), commonly referred to as the ‘due process’ clause, is interpreted in diverse ways across jurisdictions. This book not only thoroughly examines the variety of approaches to the clause adopted by different national courts but also presents a particular understanding of the transnational approach to the due process defence grounded in the interpretative framework of the Vienna Convention on the Law of Treaties. Drawing on insights and methods from comparative law that consider not only national legal systems but also international commercial arbitration and other international legal regimes, the author specifically leverages the principle of audiatur et altera pars and subsequent state practice. Among the matters examined are the following:<ul><li> threshold requirements for the due process defence;</li><li> policy considerations of and relevant limits to the interpretation and application of the due process defence;</li><li> proper notice of the appointment of the arbitrator or of the arbitration proceedings;</li><li> opportunity to present a case and equal treatment; and</li><li> the lex arbitri, lex fori, and uniform transnational approaches to the applicable law for the due process defence.</li></ul>The book includes a detailed comparative analysis of numerous domestic judicial decisions across jurisdictions. A comprehensive bibliography includes references to cases, awards, treaties, UN Documents, legislation, institutional rules, and soft laws.The book shows clearly how an understanding of transnational due process grounded in the interpretative framework mandated by international law can contribute to the uniform interpretation and application of Article V(1)(b), thus contributing to debates on the decentralised interpretation of international law by domestic courts. Resolving a range of practical questions about the precise content of the due process defence, the book’s stable and principled framework for interpreting the due process defence will be greatly appreciated by arbitration professionals. Judges will benefit from its endorsement of international judicial cooperation through the recognition and consideration of foreign court decisions, fostering a more harmonised interpretation of the New York Convention.
ENGLISH

Transnational Due Process And Article V(1)(B) Of The New York Convention

by Dan Xie

~~214,65€~~ 193,19€ 10% OFF

 Widely regarded as the most important ground for refusal under the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), Article V(1)(b), commonly referred to as the ‘due process’ clause, is interpreted in diverse ways across jurisdictions. This book not only thoroughly examines the variety of approaches to the clause adopted by different national courts but also presents a particular understanding of the transnational approach to the due process defence grounded in the interpretative framework of the Vienna Convention on the Law of Treaties. Drawing on insights and methods from comparative law that consider not only national legal systems but also international commercial arbitration and other international legal regimes, the author specifically leverages the principle of audiatur et altera pars and subsequent state practice. Among the matters examined are the following:<ul><li> threshold requirements for the due process defence;</li><li> policy considerations of and relevant limits to the interpretation and application of the due process defence;</li><li> proper notice of the appointment of the arbitrator or of the arbitration proceedings;</li><li> opportunity to present a case and equal treatment; and</li><li> the lex arbitri, lex fori, and uniform transnational approaches to the applicable law for the due process defence.</li></ul>The book includes a detailed comparative analysis of numerous domestic judicial decisions across jurisdictions. A comprehensive bibliography includes references to cases, awards, treaties, UN Documents, legislation, institutional rules, and soft laws.The book shows clearly how an understanding of transnational due process grounded in the interpretative framework mandated by international law can contribute to the uniform interpretation and application of Article V(1)(b), thus contributing to debates on the decentralised interpretation of international law by domestic courts. Resolving a range of practical questions about the precise content of the due process defence, the book’s stable and principled framework for interpreting the due process defence will be greatly appreciated by arbitration professionals. Judges will benefit from its endorsement of international judicial cooperation through the recognition and consideration of foreign court decisions, fostering a more harmonised interpretation of the New York Convention.
ENGLISH

Good Faith In International Commercial Arbitration - It’S Application By Arbitral Tribunals To The Parties’ Contract And The Arbitration Agreement

by Sabrina Pearson-Wenger

~~235,85€~~ 212,27€ 10% OFF

 From the perspective of users of international commercial arbitration, the uncertainties surrounding the application of good faith by an arbitral tribunal create an unwelcome unpredictability. Acknowledging this prevalent situation, this book is the first to study in depth the available international arbitral awards that have applied good faith, thus providing detailed guidance on how this notion is (and can be) applied by tribunals in international commercial arbitration. Moreover, the author proposes a set of deeply informed guidelines for the future application of good faith by arbitral tribunals to both the parties’ contract and the arbitration agreement.This book provides a comprehensive description of the role and scope of good faith under governing laws in key jurisdictions (England, New York, Switzerland, France, Germany, China, Singapore, Hong Kong, Australia, and Canada) as well as under the CISG, the UNIDROIT Principles, and other uniform law and soft law instruments.The book greatly clarifies the source and role of good faith with respect to the following issues surrounding the arbitration agreement:<ul><li>formal validity of the arbitration agreement;</li><li>incorporation of the arbitration agreement by reference;</li><li>interpretation of the arbitration agreement;</li><li>capacity and power of the parties to arbitrate;</li><li>extension of an arbitration agreement to a non-signatory party;</li><li>pre-arbitration requirements to negotiate or mediate; and</li><li>performance of the arbitration agreement.</li></ul>Proposed guidelines for the application of good faith to each of these issues are included, along with useful figures summarizing the content of the obligations to negotiate or mediate in good faith prior to resorting to arbitration as well as the obligation to arbitrate in good faith.By analysing the role and scope of good faith under different national and non-national laws, this book will prove of inestimable value not only by providing invaluable insight into the recourse to good faith by arbitral tribunals but also by providing guidance on how good faith should be applied to the parties’ contract in international commercial arbitration. Arbitrators, as well as users of arbitration, will welcome the clarity on how good faith is applied to the various issues surrounding the arbitration agreement and, in particular, to the pre-arbitration requirements to negotiate or mediate as well as the performance of the arbitration agreement.
ENGLISH

Good Faith In International Commercial Arbitration - It’S Application By Arbitral Tribunals To The Parties’ Contract And The Arbitration Agreement

by Sabrina Pearson-Wenger

~~235,85€~~ 212,27€ 10% OFF

 From the perspective of users of international commercial arbitration, the uncertainties surrounding the application of good faith by an arbitral tribunal create an unwelcome unpredictability. Acknowledging this prevalent situation, this book is the first to study in depth the available international arbitral awards that have applied good faith, thus providing detailed guidance on how this notion is (and can be) applied by tribunals in international commercial arbitration. Moreover, the author proposes a set of deeply informed guidelines for the future application of good faith by arbitral tribunals to both the parties’ contract and the arbitration agreement.This book provides a comprehensive description of the role and scope of good faith under governing laws in key jurisdictions (England, New York, Switzerland, France, Germany, China, Singapore, Hong Kong, Australia, and Canada) as well as under the CISG, the UNIDROIT Principles, and other uniform law and soft law instruments.The book greatly clarifies the source and role of good faith with respect to the following issues surrounding the arbitration agreement:<ul><li>formal validity of the arbitration agreement;</li><li>incorporation of the arbitration agreement by reference;</li><li>interpretation of the arbitration agreement;</li><li>capacity and power of the parties to arbitrate;</li><li>extension of an arbitration agreement to a non-signatory party;</li><li>pre-arbitration requirements to negotiate or mediate; and</li><li>performance of the arbitration agreement.</li></ul>Proposed guidelines for the application of good faith to each of these issues are included, along with useful figures summarizing the content of the obligations to negotiate or mediate in good faith prior to resorting to arbitration as well as the obligation to arbitrate in good faith.By analysing the role and scope of good faith under different national and non-national laws, this book will prove of inestimable value not only by providing invaluable insight into the recourse to good faith by arbitral tribunals but also by providing guidance on how good faith should be applied to the parties’ contract in international commercial arbitration. Arbitrators, as well as users of arbitration, will welcome the clarity on how good faith is applied to the various issues surrounding the arbitration agreement and, in particular, to the pre-arbitration requirements to negotiate or mediate as well as the performance of the arbitration agreement.
ENGLISH

International Investment Law And The Law Of The European Union - How Regionalism And Interregionalism Have Shaped The Relationship In The Post-Lisbon Era

by Xaralampos Tagaroulias

~~225,25€~~ 202,73€ 10% OFF

 International Arbitration Law LibraryThe fragility of the relationship between international law and European Union (EU) law comes to the fore when a dispute arises between an EU Member State and a multinational corporate investor. This book analyzes the legislative and jurisprudential backbone affecting both policy and practice in this area, showing in the process how both the autonomy of the EU legal order and the sovereignty of Member States can be strengthened through a common investor protection policy inside the EU with an efficient adjudication mechanism promised by the EU’s "new generation" agreements.With a thorough analysis of the parameters that the Court of Justice of the European Union (CJEU) and investor-State dispute settlement (ISDS) arbitral tribunals have set for the interplay between EU law and international investment law, the following salient issues and topics and more are covered:<ul><li> operation of the EU’s exclusive competence regarding foreign direct investment;</li><li> EU rules on capital movements related to investments;</li><li> potential conflicts between EU law and extra-EU bilateral investment treaties;</li><li> intra-EU bilateral investment treaties viewed from the perspectives of both international and EU law primacy;</li><li> role of arbitral tribunals in intra-EU dispute settlement and ramifications in the light of applicable law; and</li><li> problems arising when the lex arbitri in the proceedings is the law of a non-EU state.</li></ul>The relevant jurisprudence of the CJEU is analyzed against ISDS case law, and detailed attention is paid to scholarship in the relevant fields. The author presents substantial and procedural solutions that will prevent the violation of EU law without sacrificing the substantial protection that arbitration provides for the protection of investments.The book goes largely beyond existing literature and is the first to jointly address EU law, international investment law, and integration theories with actionable solutions. It will allow all concerned with international judic...
ENGLISH

International Investment Law And The Law Of The European Union - How Regionalism And Interregionalism Have Shaped The Relationship In The Post-Lisbon Era

by Xaralampos Tagaroulias

~~225,25€~~ 202,73€ 10% OFF

 International Arbitration Law LibraryThe fragility of the relationship between international law and European Union (EU) law comes to the fore when a dispute arises between an EU Member State and a multinational corporate investor. This book analyzes the legislative and jurisprudential backbone affecting both policy and practice in this area, showing in the process how both the autonomy of the EU legal order and the sovereignty of Member States can be strengthened through a common investor protection policy inside the EU with an efficient adjudication mechanism promised by the EU’s "new generation" agreements.With a thorough analysis of the parameters that the Court of Justice of the European Union (CJEU) and investor-State dispute settlement (ISDS) arbitral tribunals have set for the interplay between EU law and international investment law, the following salient issues and topics and more are covered:<ul><li> operation of the EU’s exclusive competence regarding foreign direct investment;</li><li> EU rules on capital movements related to investments;</li><li> potential conflicts between EU law and extra-EU bilateral investment treaties;</li><li> intra-EU bilateral investment treaties viewed from the perspectives of both international and EU law primacy;</li><li> role of arbitral tribunals in intra-EU dispute settlement and ramifications in the light of applicable law; and</li><li> problems arising when the lex arbitri in the proceedings is the law of a non-EU state.</li></ul>The relevant jurisprudence of the CJEU is analyzed against ISDS case law, and detailed attention is paid to scholarship in the relevant fields. The author presents substantial and procedural solutions that will prevent the violation of EU law without sacrificing the substantial protection that arbitration provides for the protection of investments.The book goes largely beyond existing literature and is the first to jointly address EU law, international investment law, and integration theories with actionable solutions. It will allow all concerned with international judic...
ENGLISH

Early Determination Of Jurisdiction

by Fabricio Fortese

~~208,03€~~ 187,23€ 10% OFF

 The interpretation and application of the competence-competence principle are not uniform across jurisdictions. Conflicting approaches - to the extent, effects, and consequences of permitting an arbitral tribunal to decide on its own jurisdiction and the proper timing for judicial involvement - rest upon significant theoretical and policy concerns that have practical implications. Focusing on Article 8(1) of the UNCITRAL Model Law on International Commercial Arbitration, this book thoroughly examines a question of timing: whether national courts should (or could) conclusively settle jurisdictional disputes before or after the arbitrators have determined jurisdiction. Covered in the analysis are such salient issues and aspects as the following: <ul><li> prima facie versus plenary or full standard of judicial review;</li><li> obligations and powers the law affords judges in the presence of an (even putative) arbitration agreement;</li><li> cases highlighting the controversies in interpreting and applying the Model Law’s concepts, principles, and rules; and</li><li> detailed analysis of the text of the Model Law, including its drafting history.</li></ul> Article 8(1) of the Model Law is analysed according to its interplay with other provisions of the same instrument and the New York Convention....
ENGLISH

Early Determination Of Jurisdiction

by Fabricio Fortese

~~208,03€~~ 187,23€ 10% OFF

 The interpretation and application of the competence-competence principle are not uniform across jurisdictions. Conflicting approaches - to the extent, effects, and consequences of permitting an arbitral tribunal to decide on its own jurisdiction and the proper timing for judicial involvement - rest upon significant theoretical and policy concerns that have practical implications. Focusing on Article 8(1) of the UNCITRAL Model Law on International Commercial Arbitration, this book thoroughly examines a question of timing: whether national courts should (or could) conclusively settle jurisdictional disputes before or after the arbitrators have determined jurisdiction. Covered in the analysis are such salient issues and aspects as the following: <ul><li> prima facie versus plenary or full standard of judicial review;</li><li> obligations and powers the law affords judges in the presence of an (even putative) arbitration agreement;</li><li> cases highlighting the controversies in interpreting and applying the Model Law’s concepts, principles, and rules; and</li><li> detailed analysis of the text of the Model Law, including its drafting history.</li></ul> Article 8(1) of the Model Law is analysed according to its interplay with other provisions of the same instrument and the New York Convention....
ENGLISH

International Environmental Law And International Human Rights Law In Investment Treaty Arbitration - The Contribution Of Host States'' Argumentation In Re-Shaping International Investment Law

by Giovanna E. Gismondi

205,38€ + 10% CARD

 Policies aimed at the expansion of transnational capital are sometimes implemented at the expense of growing social inequality and popular frustration in host countries. This timely and deeply researched volume identifies - and offers new insights into - the growing use of and reliance upon international environmental and human rights law in the arbitration of investor-State disputes. It presents a comprehensive and pragmatic approach to the most effective way to connect international investment law to the protection of human rights and the environment.Based on an analysis of 30 arbitral awards, this book demonstrates how recent investment treaty arbitration - and in particular respondent States’ argumentation in arbitral proceedings - highlights the human rights and environmental considerations connected with such factors as the following:<ul><li>the fair and equitable treatment (FET) clause;</li><li>jurisdictional obstacles;</li><li>treaty conflict;</li><li>role of amici curiae;</li><li>damages;</li><li>tribunal’s dilution of the significance of environmental and human rights law;</li><li>corporate social responsibility;</li><li>free, prior, and informed consent;</li><li>social license to operate; and</li><li>(in)applicability of the systemic approach to the interpretation of investment treaties.</li></ul>As investment arbitration continues to be challenged by growing demands for greater public involvement and for participation of third parties that are affected by the proceedings, this book responds to the need to reshape the investment regime into more human rights and environmentally friendly system. It will prove an invaluable resource for arbitral institutions, academics, arbitrators, arbitration counsel, and other participants in investment treaty arbitration.
ENGLISH

International Environmental Law And International Human Rights Law In Investment Treaty Arbitration - The Contribution Of Host States'' Argumentation In Re-Shaping International Investment Law

by Giovanna E. Gismondi

205,38€ + 10% CARD

 Policies aimed at the expansion of transnational capital are sometimes implemented at the expense of growing social inequality and popular frustration in host countries. This timely and deeply researched volume identifies - and offers new insights into - the growing use of and reliance upon international environmental and human rights law in the arbitration of investor-State disputes. It presents a comprehensive and pragmatic approach to the most effective way to connect international investment law to the protection of human rights and the environment.Based on an analysis of 30 arbitral awards, this book demonstrates how recent investment treaty arbitration - and in particular respondent States’ argumentation in arbitral proceedings - highlights the human rights and environmental considerations connected with such factors as the following:<ul><li>the fair and equitable treatment (FET) clause;</li><li>jurisdictional obstacles;</li><li>treaty conflict;</li><li>role of amici curiae;</li><li>damages;</li><li>tribunal’s dilution of the significance of environmental and human rights law;</li><li>corporate social responsibility;</li><li>free, prior, and informed consent;</li><li>social license to operate; and</li><li>(in)applicability of the systemic approach to the interpretation of investment treaties.</li></ul>As investment arbitration continues to be challenged by growing demands for greater public involvement and for participation of third parties that are affected by the proceedings, this book responds to the need to reshape the investment regime into more human rights and environmentally friendly system. It will prove an invaluable resource for arbitral institutions, academics, arbitrators, arbitration counsel, and other participants in investment treaty arbitration.
ENGLISH

Twilight Issues In International Arbitration - Latent Choice Of Law Challenges

by George Bermann

221,28€ + 10% CARD

 There are many issues of arbitral practice that remain largely unaddressed, or very poorly addressed, in the sources to which tribunals and counsel conventionally turn for procedural guidance: the arbitration agreement, the lex arbitri and rules of procedure. This book brings together the most frequently recurring of such "twilight" issues—so-called because all participants in the arbitral process, when facing them, find themselves "in the dark"—showing in each case where it is best for arbitrators, counsel, and parties to look for solutions offering logic, certainty and predictability.The issues ably covered by the author include, among others, the following:<ul><li>Is a non-signatory bound by or entitled to invoke an arbitration agreement?</li><li>When may res judicata or collateral estoppel subject?</li><li>Should a tribunal issue an anti-suit injunction?</li><li>When may a tribunal treat as mandatory a law other than the chosen one?</li><li>On what basis may a witness invoke testimonial privilege?</li><li>When may a tribunal sanction counsel for what it considers misconduct?</li><li>By what standards is a determination of corruption to be made?</li><li>How should a tribunal determine the interest rate applicable to an award?</li><li>On what basis are costs to be allocated?</li></ul>Examining in turn the guidance that may be provided by normative sources—national law (and if so, which one?), simple exercise of good judgment, or "international standards" derived from soft law, arbitral jurisprudence, international law, and scholarly and professional commentary—the analysis clearly shows how, when conventional sources of legal guidance are unavailing, decisions on important matters of arbitral practice and procedure are best made. The book will prove of major relevance and value to any and all stakeholders in the international arbitral process, whether commercial or investor-state.
ENGLISH

Twilight Issues In International Arbitration - Latent Choice Of Law Challenges

by George Bermann

221,28€ + 10% CARD

 There are many issues of arbitral practice that remain largely unaddressed, or very poorly addressed, in the sources to which tribunals and counsel conventionally turn for procedural guidance: the arbitration agreement, the lex arbitri and rules of procedure. This book brings together the most frequently recurring of such "twilight" issues—so-called because all participants in the arbitral process, when facing them, find themselves "in the dark"—showing in each case where it is best for arbitrators, counsel, and parties to look for solutions offering logic, certainty and predictability.The issues ably covered by the author include, among others, the following:<ul><li>Is a non-signatory bound by or entitled to invoke an arbitration agreement?</li><li>When may res judicata or collateral estoppel subject?</li><li>Should a tribunal issue an anti-suit injunction?</li><li>When may a tribunal treat as mandatory a law other than the chosen one?</li><li>On what basis may a witness invoke testimonial privilege?</li><li>When may a tribunal sanction counsel for what it considers misconduct?</li><li>By what standards is a determination of corruption to be made?</li><li>How should a tribunal determine the interest rate applicable to an award?</li><li>On what basis are costs to be allocated?</li></ul>Examining in turn the guidance that may be provided by normative sources—national law (and if so, which one?), simple exercise of good judgment, or "international standards" derived from soft law, arbitral jurisprudence, international law, and scholarly and professional commentary—the analysis clearly shows how, when conventional sources of legal guidance are unavailing, decisions on important matters of arbitral practice and procedure are best made. The book will prove of major relevance and value to any and all stakeholders in the international arbitral process, whether commercial or investor-state.
ENGLISH

Dealing With Bribery And Corruption In International Commercial Arbitration - To Probe Or Not To Probe

by Emmanuel Obiora Igbokwe

215,98€ + 10% CARD

 <span style="color: rgb(51, 51, 51); font-family: "Source Sans Pro", sans-serif; font-size: 14px; font-style: normal; font-variant-ligatures: normal; font-variant-caps: normal; font-weight: 400; letter-spacing: normal; orphans: 2; text-align: start; text-indent: 0px; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px; -webkit-text-stroke-width: 0px; background-color: rgb(255, 255, 255); text-decoration-thickness: initial; text-decoration-style: initial; text-decoration-color: initial; display: inline !important; float: none;">International Arbitration Law Library, Volume 65International commercial arbitration is by no means free from bribery and corruption. Although a plethora of legal scholarship clearly affirms this contention, a thorough study on the particularly important question of the authority and duty of international commercial arbitrators to investigate a suspicion or indication of bribery or corruption sua sponte ¬- that is, on their own initiative - has been surprisingly lacking. This important book fills this gap, inter alia, by locating sua sponte authority in the position of arbitral tribunals in establishing the facts of a case and ascertaining and applying the applicable normative standards.In addition to providing a comprehensive examination of how the issue of bribery and corruption is dealt with in contemporary international commercial arbitration, the book also highlights the role of arbitrators in global efforts to combat transnational commercial bribery and corruption. Among others, the following critical issues are thoroughly investigated:<ul><li>arbitrability of issues of public interests;</li><li>intermediary contracts;</li><li>role of arbitrators in the fact-finding process;</li><li>party autonomy versus overriding mandatory rules;</li><li>iura novit curia in international commercial arbitration in the context of bribery and corruption;</li><li>notion of transnational (or ‘truly international’) public policy;</li><li>arbitrators’ duty to act as guardians of international commerce;</li><li>investigative tools available to arbitrators;</li><li>dealing with manifestly recalcitrant parties;</li><li>possible consequences of violating the obligation to sua sponte investigate; and</li><li>the view from developing countries.</li></ul>The analysis leans primarily on Swiss law, as Switzerland is one of the most important jurisdictions in international commercial arbitration; Switzerland has also been involved in some of the most famous and controversial arbitration cases wherein bribery and corruption became an issue. However, the study also includes a comparative analysis of the relevant laws, jurisprudence, and doctrine of other major arbitration venues, particularly England, France, and Germany.Not only in the light it sheds on how and whether international commercial arbitrators have hitherto justified the trust States have placed in them regarding the protection of the public interests but also in the practical solutions it offers arbitrators faced with issues of bribery and corruption, this deeply researched book equips arbitration practitioners and arbitration institutions with a hitherto lacking in-depth analysis on the question of sua sponte investigation. It also provides invaluable insights on how this issue might affect the future, legitimacy and expansion of this dispute settlement mechanism. Outside the field of arbitration, the book also provides jurists, legal scholars, in-house counsel for companies doing transnational business and public officials with highly enlightening perspectives on the interaction between international commercial arbitration and public interests.
ENGLISH

Dealing With Bribery And Corruption In International Commercial Arbitration - To Probe Or Not To Probe

by Emmanuel Obiora Igbokwe

215,98€ + 10% CARD

 <span style="color: rgb(51, 51, 51); font-family: "Source Sans Pro", sans-serif; font-size: 14px; font-style: normal; font-variant-ligatures: normal; font-variant-caps: normal; font-weight: 400; letter-spacing: normal; orphans: 2; text-align: start; text-indent: 0px; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px; -webkit-text-stroke-width: 0px; background-color: rgb(255, 255, 255); text-decoration-thickness: initial; text-decoration-style: initial; text-decoration-color: initial; display: inline !important; float: none;">International Arbitration Law Library, Volume 65International commercial arbitration is by no means free from bribery and corruption. Although a plethora of legal scholarship clearly affirms this contention, a thorough study on the particularly important question of the authority and duty of international commercial arbitrators to investigate a suspicion or indication of bribery or corruption sua sponte ¬- that is, on their own initiative - has been surprisingly lacking. This important book fills this gap, inter alia, by locating sua sponte authority in the position of arbitral tribunals in establishing the facts of a case and ascertaining and applying the applicable normative standards.In addition to providing a comprehensive examination of how the issue of bribery and corruption is dealt with in contemporary international commercial arbitration, the book also highlights the role of arbitrators in global efforts to combat transnational commercial bribery and corruption. Among others, the following critical issues are thoroughly investigated:<ul><li>arbitrability of issues of public interests;</li><li>intermediary contracts;</li><li>role of arbitrators in the fact-finding process;</li><li>party autonomy versus overriding mandatory rules;</li><li>iura novit curia in international commercial arbitration in the context of bribery and corruption;</li><li>notion of transnational (or ‘truly international’) public policy;</li><li>arbitrators’ duty to act as guardians of international commerce;</li><li>investigative tools available to arbitrators;</li><li>dealing with manifestly recalcitrant parties;</li><li>possible consequences of violating the obligation to sua sponte investigate; and</li><li>the view from developing countries.</li></ul>The analysis leans primarily on Swiss law, as Switzerland is one of the most important jurisdictions in international commercial arbitration; Switzerland has also been involved in some of the most famous and controversial arbitration cases wherein bribery and corruption became an issue. However, the study also includes a comparative analysis of the relevant laws, jurisprudence, and doctrine of other major arbitration venues, particularly England, France, and Germany.Not only in the light it sheds on how and whether international commercial arbitrators have hitherto justified the trust States have placed in them regarding the protection of the public interests but also in the practical solutions it offers arbitrators faced with issues of bribery and corruption, this deeply researched book equips arbitration practitioners and arbitration institutions with a hitherto lacking in-depth analysis on the question of sua sponte investigation. It also provides invaluable insights on how this issue might affect the future, legitimacy and expansion of this dispute settlement mechanism. Outside the field of arbitration, the book also provides jurists, legal scholars, in-house counsel for companies doing transnational business and public officials with highly enlightening perspectives on the interaction between international commercial arbitration and public interests.
ENGLISH

Fact-Finding In International Arbitration - The Emergence Of A Transnational Lex Evidentiae

by Julian Bickmann

212,00€ + 10% CARD

 Establishing a factual basis on which to apply the law can be an extraordinarily challenging process, and perhaps more so in international arbitration than in any other proceedings, due to the very different notions of fact-finding that prevail among jurisdictions. This important book assesses, for the first time, the contours of an emerging transnational law of fact-finding that promises to greatly enhance the efficiency and reliability of this crucial arbitral procedure.In his analysis, focusing on bases that reflect current (but fluid) transnational practice, the author assembles a viable lex evidentiae from an in-depth examination and synthesis of the following bodies of source material:<ul><li>published arbitration proceedings and awards;</li><li>the general framework of fact-finding issues as provided for under the arbitration acts of England and Wales, the United States, Germany, Brazil, Spain, Switzerland, Austria, and Italy, as well as under the Model Law;</li><li>fact-finding stipulations under UNCITRAL Arbitration Rules as well as under various institutional rules;</li><li>soft law (such as the IBA Rules, Prague Rules, ALI/UNIDROIT Principles of Transnational Civil Procedure);</li><li>best practices as captured by legal commentary; and</li><li>investment arbitration proceedings, where many decisions and awards are nowadays publicly available.</li></ul>In the course of the analysis, a comprehensive description and analysis of what fact-finding entails, including both gathering of facts and taking of evidence, is fully elaborated.Given that it is an essential task of international arbitration proceedings to define the disagreements between the parties and seek to determine the truth, the international arbitration community must be able to rely on a robust, consistent, and predictable, albeit flexible and adaptive, set of fact-finding rules. Against this background, the present study not only provides a stocktaking of current practice but also makes a signal contribution to meeting the need for legal certainty and reliability in international arbitration.
ENGLISH

Fact-Finding In International Arbitration - The Emergence Of A Transnational Lex Evidentiae

by Julian Bickmann

212,00€ + 10% CARD

 Establishing a factual basis on which to apply the law can be an extraordinarily challenging process, and perhaps more so in international arbitration than in any other proceedings, due to the very different notions of fact-finding that prevail among jurisdictions. This important book assesses, for the first time, the contours of an emerging transnational law of fact-finding that promises to greatly enhance the efficiency and reliability of this crucial arbitral procedure.In his analysis, focusing on bases that reflect current (but fluid) transnational practice, the author assembles a viable lex evidentiae from an in-depth examination and synthesis of the following bodies of source material:<ul><li>published arbitration proceedings and awards;</li><li>the general framework of fact-finding issues as provided for under the arbitration acts of England and Wales, the United States, Germany, Brazil, Spain, Switzerland, Austria, and Italy, as well as under the Model Law;</li><li>fact-finding stipulations under UNCITRAL Arbitration Rules as well as under various institutional rules;</li><li>soft law (such as the IBA Rules, Prague Rules, ALI/UNIDROIT Principles of Transnational Civil Procedure);</li><li>best practices as captured by legal commentary; and</li><li>investment arbitration proceedings, where many decisions and awards are nowadays publicly available.</li></ul>In the course of the analysis, a comprehensive description and analysis of what fact-finding entails, including both gathering of facts and taking of evidence, is fully elaborated.Given that it is an essential task of international arbitration proceedings to define the disagreements between the parties and seek to determine the truth, the international arbitration community must be able to rely on a robust, consistent, and predictable, albeit flexible and adaptive, set of fact-finding rules. Against this background, the present study not only provides a stocktaking of current practice but also makes a signal contribution to meeting the need for legal certainty and reliability in international arbitration.
ENGLISH

Contract Law In International Commercial Arbitration

by Peter Sester

212,00€ + 10% CARD

 The vast bulk of claims in international commercial arbitration are contractual in nature. Viewed through that lens, what comes to occupy centre stage in the arbitration of disputes is the choice of applicable contract law. This book breaks new ground by for the first time focusing in depth on the contract law chosen by the parties to be applied to disputes.The author uses a comparative-inductive methodology to analyse why - according to statistics of the International Chamber of Commerce - English, New York, and Swiss contract law outperform transnational and other contract law regimes in the choice-of-law provision of business contracts. He finds that these three bodies of law share a firm commitment to enforcing the contract as written, thus prioritizing certainty, stability, and predictability, and clearly recognizing the parties’ right to determine for themselves (and have arbitrators and courts respect) central issues such as risk allocation and price.Starting from a detailed comparative examination of traditional and contemporary theories of contract, the author develops a minimalist approach that is acceptable to lawyers with a civil or common law background and that facilitates dealmaking by providing a clear set of hard-edged rules in four areas - formation of contracts, invalidity and public policy, contract interpretation, and damages for breach - and showing how each of the three contract regimes that are dominant in practice manifests his approach.With its emphasis on pragmatic adjudication grounded on facts and consequences rather than on conceptualisms and generalities, the book greatly enhances the ability of arbitrators to make decisions based on legal arguments that fit the setting of international commercial arbitration. It is sure to become established as a tool to achieve the defined objective of facilitating cross-border commercial transactions as well as providing arbitrators with a set of rules for the interpretation of contractual provisions and the quantification of damages.‘Peter Sester confronts the reality that disputes in commercial arbitration are overwhelmingly contract-based, and properly directs our attention away from the contract by which the parties agreed to arbitrate to the contract by reference to which they intended their disputes to be adjudicated. This is a most welcome move and one that cannot help stimulate those whose interests are similarly situated on the frontier between the law of arbitration and the law of international contracts.’Prof. George A. BermannColumbia University, New York City‘This is a book that is not only useful but also close to market expectations. … Summing up, I would like to congratulate Peter Sester for giving us a free-market society book. He provides his readers with much food for thought and a remarkable admonition not to replace the parties’ work with public policy considerations.’Prof. Dr Peter NobelEmeritus Universities St. Gallen and Zurich, Switzerland
ENGLISH

Contract Law In International Commercial Arbitration

by Peter Sester

212,00€ + 10% CARD

 The vast bulk of claims in international commercial arbitration are contractual in nature. Viewed through that lens, what comes to occupy centre stage in the arbitration of disputes is the choice of applicable contract law. This book breaks new ground by for the first time focusing in depth on the contract law chosen by the parties to be applied to disputes.The author uses a comparative-inductive methodology to analyse why - according to statistics of the International Chamber of Commerce - English, New York, and Swiss contract law outperform transnational and other contract law regimes in the choice-of-law provision of business contracts. He finds that these three bodies of law share a firm commitment to enforcing the contract as written, thus prioritizing certainty, stability, and predictability, and clearly recognizing the parties’ right to determine for themselves (and have arbitrators and courts respect) central issues such as risk allocation and price.Starting from a detailed comparative examination of traditional and contemporary theories of contract, the author develops a minimalist approach that is acceptable to lawyers with a civil or common law background and that facilitates dealmaking by providing a clear set of hard-edged rules in four areas - formation of contracts, invalidity and public policy, contract interpretation, and damages for breach - and showing how each of the three contract regimes that are dominant in practice manifests his approach.With its emphasis on pragmatic adjudication grounded on facts and consequences rather than on conceptualisms and generalities, the book greatly enhances the ability of arbitrators to make decisions based on legal arguments that fit the setting of international commercial arbitration. It is sure to become established as a tool to achieve the defined objective of facilitating cross-border commercial transactions as well as providing arbitrators with a set of rules for the interpretation of contractual provisions and the quantification of damages.‘Peter Sester confronts the reality that disputes in commercial arbitration are overwhelmingly contract-based, and properly directs our attention away from the contract by which the parties agreed to arbitrate to the contract by reference to which they intended their disputes to be adjudicated. This is a most welcome move and one that cannot help stimulate those whose interests are similarly situated on the frontier between the law of arbitration and the law of international contracts.’Prof. George A. BermannColumbia University, New York City‘This is a book that is not only useful but also close to market expectations. … Summing up, I would like to congratulate Peter Sester for giving us a free-market society book. He provides his readers with much food for thought and a remarkable admonition not to replace the parties’ work with public policy considerations.’Prof. Dr Peter NobelEmeritus Universities St. Gallen and Zurich, Switzerland
ENGLISH

Moral Damages Under International Investment Law - The Path Towards Convergence

by Dogan Gultutan

214,65€ + 10% CARD

 International Arbitration Law Library# 62 The much-debated fragmentation of international law, most clearly manifest in the stand-alone nature of the investor-state dispute settlement regime, has produced the unfortunate side effect of an intense focus on material damages at the expense of moral damages. This timely groundbreaking book seeks to remedy the unfairness and injustice that flows from this difference in treatment by offering a thorough review of the underlying rules and principles of international law relating to moral damages claims, with a view to considering the appropriateness and possibility of convergence of the various sub-disciplines or branches of international law (e.g., international investment law and international human rights law) to preserve and protect the coherence, uniformity and stability of the international legal order. The analysis covers such central issues as the following: <ul> <li>who should be entitled to seek moral damages; </li> <li>the legal test to determining moral damages claims, in respect of both substantive and evidential issues;</li> <li>applicability and scope of the theory of corrective justice in moral damages claims;</li> <li>the victim status of natural persons, corporations, and investors’ employees in investor-state disputes;</li> <li>quantification of moral damages;</li> <li>what the precise nature of the compensation ought to be; and </li> <li>role of the theory of law and economics in the context of moral damages claims.</li> </ul> Decisions of international human rights courts are examined to assess, by way of comparison, the appropriateness of the stance taken by international investment tribunals. This is the first in-depth treatment of the important question of whether and under which circumstances international investment tribunals should have jurisdiction to award moral damages, as well as the remedies available and the quantification exercise guiding compensation. The analysis will prove invaluable to practitioners and academics eager to enhance their knowledge and understanding of the rules and principles applicable to moral damages claims under international investment law.
ENGLISH

Moral Damages Under International Investment Law - The Path Towards Convergence

by Dogan Gultutan

214,65€ + 10% CARD

 International Arbitration Law Library# 62 The much-debated fragmentation of international law, most clearly manifest in the stand-alone nature of the investor-state dispute settlement regime, has produced the unfortunate side effect of an intense focus on material damages at the expense of moral damages. This timely groundbreaking book seeks to remedy the unfairness and injustice that flows from this difference in treatment by offering a thorough review of the underlying rules and principles of international law relating to moral damages claims, with a view to considering the appropriateness and possibility of convergence of the various sub-disciplines or branches of international law (e.g., international investment law and international human rights law) to preserve and protect the coherence, uniformity and stability of the international legal order. The analysis covers such central issues as the following: <ul> <li>who should be entitled to seek moral damages; </li> <li>the legal test to determining moral damages claims, in respect of both substantive and evidential issues;</li> <li>applicability and scope of the theory of corrective justice in moral damages claims;</li> <li>the victim status of natural persons, corporations, and investors’ employees in investor-state disputes;</li> <li>quantification of moral damages;</li> <li>what the precise nature of the compensation ought to be; and </li> <li>role of the theory of law and economics in the context of moral damages claims.</li> </ul> Decisions of international human rights courts are examined to assess, by way of comparison, the appropriateness of the stance taken by international investment tribunals. This is the first in-depth treatment of the important question of whether and under which circumstances international investment tribunals should have jurisdiction to award moral damages, as well as the remedies available and the quantification exercise guiding compensation. The analysis will prove invaluable to practitioners and academics eager to enhance their knowledge and understanding of the rules and principles applicable to moral damages claims under international investment law.
Loading results...

View more results