Download or read book The Allocation of Power Between Arbitral Tribunals and State Courts written by Alan Scott Rau and published by . This book was released on 2018 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: The ultimate question that runs through all of our law of arbitration is the allocation of responsibility between state courts and arbitral tribunals: If private tribunals assume the power to bind others in a definitive fashion, we must ask, where does this authority come from ? Fundamentally different in this respect from a state judge, a private arbitrator may only derive his legitimacy from that exercise of private ordering and self-government which characterizes any voluntary commercial transaction. This work begins then with the dimensions of that "consent" which alone can justify arbitral jurisdiction. The discussion is then carried forward to explore how party autonomy in the contracting process may be expanded, giving rise to the voluntary reallocation of authority between courts and arbitrators. It concludes with the necessary inquiry into the autonomy with respect to the "chosen law" that will govern the agreement to arbitrate itself.

Download or read book The Allocation of Power between Arbitral Tribunals and State Courts written by Alan Scott Rau and published by BRILL. This book was released on 2019-03-25 with total page 608 pages. Available in PDF, EPUB and Kindle. Book excerpt: The ultimate question that runs through all of our law of arbitration is the allocation of responsibility between state courts and arbitral tribunals : If private tribunals assume the power to bind others in a definitive fashion, we must ask, where does this authority come from ? Fundamentally different in this respect from a state judge, a private arbitrator may only derive his legitimacy from that exercise of private ordering and self-government which characterizes any voluntary commercial transaction. This work begins then with the dimensions of that “consent” which alone can justify arbitral jurisdiction. The discussion is then carried forward to explore how party autonomy in the contracting process may be expanded, giving rise to the voluntary reallocation of authority between courts and arbitrators. It concludes with the necessary inquiry into the autonomy with respect to the “chosen law” that will govern the agreement to arbitrate itself.

Download or read book Contract Interpretation in Investment Treaty Arbitration written by Yuliya Chernykh and published by BRILL. This book was released on 2022-01-17 with total page 629 pages. Available in PDF, EPUB and Kindle. Book excerpt: Contracts are relevant, frequently central, for a significant number of investment disputes. Yet, the way tribunals ascertain their content remains largely underexplored. How do tribunals interpret contracts in investment treaty arbitration? How should they interpret contracts? Does national law have any role to play? Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue addresses these questions. The monograph offers a valuable insight into the practice and theory of contract interpretation in investment treaty arbitration. By proposing a theoretical frame for seamless integration of contract interpretation into the overall structure of decision-making, the book contributes to predictability, coherence, sufficiency and correctness of the tribunals’ interpretative practices in investment treaty arbitration.

Download or read book International Investment Law written by Hélène Ruiz Fabri and published by Bloomsbury Publishing. This book was released on 2022-05-19 with total page 663 pages. Available in PDF, EPUB and Kindle. Book excerpt: Written by leading experts in the field, this collection offers a critical and comparative analysis of the existing case law on international investment law. The book makes a topical contribution to the existing literature, showing most notably that: (1) international investment law has a longer history than that generally considered and that this history is fundamental to understanding its development; (2) international investment law is crafted today by a large number of actors. These include not only investment arbitrators, but also a variety of international and national courts and tribunals; and (3) the literature and case law in languages other than English and from different legal cultures is essential to grasp the essence of the development of the topic. This book brings together more than 40 experts from different countries and legal traditions and combines conceptual analysis and archival investigation of landmark case law to provide the reader with a fresh and innovative understanding of the breadth of international investment law.

Download or read book Deference in International Commercial Arbitration written by Franco Ferrari and published by Kluwer Law International B.V.. This book was released on 2023-05-12 with total page 560 pages. Available in PDF, EPUB and Kindle. Book excerpt: In international arbitration, deference entails that one decision-maker does not make an autonomous assessment but limits its decision-making power out of respect for the decision or authority of another actor. For example, a court exercising post-award review might refrain from reviewing a question of procedure de novo but instead defer to a prior determination made by the arbitral tribunal. In this book, prominent arbitration practitioners and academics offer the first systematic analysis of such deference in international arbitration. With abundant reference to case law from major arbitration hubs, the analysis is organized around the three relationships in which questions of deference arise: public-private relationships in which a State actor (e.g., a court) must decide whether it should pay deference to determinations made by a private actor (e.g., a tribunal or an arbitral institution); public-public relationships in which a State actor (e.g., a court at the place of recognition and enforcement) must decide whether it should pay deference to another State actor (e.g., a court at the seat); and private-private relationships in which a private actor (e.g., an arbitral tribunal) must decide whether it should pay deference to another private actor (e.g., another arbitral tribunal or an arbitral institution). The book makes an important contribution to tracing the boundaries of the multiple layers of control over arbitration proceedings. It takes a giant step towards establishing the right equilibrium between the different layers of authority and thus meeting a pivotal challenge for the viability of arbitration as a form of dispute resolution.

Download or read book Private International Law and Arbitral Jurisdiction written by Faidon Varesis and published by Taylor & Francis. This book was released on 2022-12-23 with total page 278 pages. Available in PDF, EPUB and Kindle. Book excerpt: International commercial arbitration and litigation are often seen as competing fora, fields of law, or markets. This intersection is at its highest at the forefront of any proceedings, at the jurisdictional stage. The analysis of jurisdictional issues at the forefront of an arbitration has been confined in a descriptive analysis of the law and jurisprudence, dealing with jurisdictional intersections almost in a mechanistic manner. These are not, however, issues which can be treated as mere mechanical rules. They are issues pertaining to core notions of authority, sovereignty, their origins and their allocation. At the same time, the pragmatic and practical domination of party autonomy is a fact which cannot be disregarded when one considers the normative and theoretical foundations of any model of dealing with these issues. This book moves beyond an analysis of arbitration and jurisdiction clauses to reconcile theory and practice, and provides an underlying theoretical model to explain and regulate jurisdictional intersections at the early stages of an arbitration from a private international law perspective. It combines both an in-depth engagement with the theoretical literature as well as a close examination and analysis of its practical consequences in the form of a restatement of the law of England and Wales. From a methodological perspective, it utilises contemporary theories in private international law to propose a coherent model of regulating arbitral jurisdictions which promotes autonomy and freedom of the parties at this stage. Demonstrating, first, how the theoretical model can be applied in practice and, second, to provide a basis for a potential future top-down or bottom-up approach of adopting the proposed model, it includes a succinct and practical codification of the current state of affairs in relation to the whole spectrum of jurisdictional issues in England and Wales to serve as a useful tool for practitioners considering jurisdictional issues both from the perspective of State courts and from the perspective of arbitral tribunals, as well as academics researching in these areas.

Download or read book The Cambridge Companion to International Arbitration written by C. L. Lim and published by Cambridge University Press. This book was released on 2021-10-21 with total page 551 pages. Available in PDF, EPUB and Kindle. Book excerpt: This Cambridge Companion explores the main senses of the term 'international arbitration'; including the arbitration of private commercial disputes, disputes between a State and a foreign investor, disputes between States and also between a State and its parts. It treats these various forms as being inter-related, if not always conceptually, then as a matter of history, rather than as collective victims of imprecise language. The book touches not only on current debates but also more foundational aspects, such as the tension between party autonomy and State authority, and the pacifist roots of modern international arbitration. Thus, it aims to offer a concise survey of the history, the main issues as well as the latest developments in a single, handy volume. It will be an invaluable introduction to the subject for students studying international arbitration, commercial law and international law, and also lawyers and the general reader.

Download or read book The Constitution of Arbitration written by Victor Ferreres Comella and published by Cambridge University Press. This book was released on 2021-03-11 with total page 235 pages. Available in PDF, EPUB and Kindle. Book excerpt: This work is the first systematic discussion of arbitration from a constitutional perspective, covering the most important types of arbitration, including domestic arbitration in private law, international commercial arbitration, investment treaty arbitration, and state-to-state arbitration. Victor Ferreres Comella argues for the recognition of a constitutional right to arbitration in the private sphere and discusses the constraints that the state is entitled to place on this right. He also explores the conditions under which investment treaty arbitration is constitutionally legitimate, and highlights the shortcomings of international adjudication from a constitutional perspective. The rich landscape of arbitration is explained in clear language, avoiding unnecessary technical jargon. Using examples drawn from a wide variety of domains, Ferreres bridges the gap between constitutional and arbitral theory.

Download or read book Essays in International Litigation for Lord Collins written by Jonathan Harris and published by Oxford University Press. This book was released on 2022-11-30 with total page 449 pages. Available in PDF, EPUB and Kindle. Book excerpt: This collection is in honour of the remarkable career of Lord Collins. The book offers a set of unique insights into the conduct of cross-border litigation; the judicial role in international cases; the shape of English private international law; the conduct of international arbitration; and the interface with public international law.

Download or read book International Commercial Arbitration in New York written by James H. Carter and published by Oxford University Press. This book was released on 2013 with total page 725 pages. Available in PDF, EPUB and Kindle. Book excerpt: International Commercial Arbitration in New York focuses on the distinctive aspects of international arbitration in New York. Serving as an essential strategic guide, this book allows practitioners to represent clients more effectively in cases where New York is implicated as either the place of arbitration or evidence or assets are located in New York. Each chapter elucidates a vital topic, including the existing New York legal landscape, drafting considerations for clauses designating New York as the place of arbitration, and material and advice on selecting arbitrators. The book also covers a series of topics at the intersection of arbitral process and the New York courts, including jurisdiction, enforcing arbitration agreements, and obtaining preliminary relief and discovery. Class action arbitration, challenging and enforcing arbitral awards, and biographical materials on New York-based international arbitrators is also included, making this a comprehensive, valuable resource for practitioners.

Download or read book Extraterritorial Use of Force against Non State Actors written by Dire Tladi and published by BRILL. This book was released on 2022-05-16 with total page 208 pages. Available in PDF, EPUB and Kindle. Book excerpt: This study assesses the rules of international law relevant to the use of force against non-State actors. The rules of international law on the use of force are the lynchpin of the project of international law for a more secure and peaceful world. Yet, as important as they are, the rules of international law on the use of force are also highly contentious. With the shift in the nature of conflicts from inter-State wars to conflicts involving non-State actors, and with the growth in the threat of global terrorism, the focus of the law on the use of force has shifted to the use of force against non-State actors. To assess the permissibility of the use of force against non-State actors, this study will focus on two grounds that have been advanced as bases for the extraterritorial use of force against non-State actors: the right of a State to act in self-defence and intervention by invitation. While there are other grounds that have been advanced for the extraterritorial use of force in international law, it is only in respect of these two grounds that the role of non-State actors has a significant influence on the legality or not of the use of force.

Download or read book Autonomous Versus Domestic Concepts under the New York Convention written by Franco Ferrari and published by Kluwer Law International B.V.. This book was released on 2021-03-09 with total page 559 pages. Available in PDF, EPUB and Kindle. Book excerpt: International Arbitration Law Library # 61 The 1958 New York Convention is universally acclaimed as one of the most important instruments on international commercial arbitration. Although the Convention ensures that contracting States cannot justify failure to comply with their treaty obligations by reference to domestic law, the courts of different contracting States apply the Convention differently. This diverging case law arises from uncertainty as to whether certain concepts employed in the Convention must be construed autonomously or in light of domestic law. This incomparable analysis of the New York Convention as an instrument of uniform law presents insightful contributions by some of the world’s most distinguished academics and practitioners in the field of arbitration and is sure to significantly contribute to arbitral practice and jurisprudence in the Convention’s more than 160 contracting States. With extensive reference to case law from major arbitration hubs, the contributors examine the Convention with the aim of identifying the boundaries between autonomous and domestic concepts. Key elements covered include the following: the role of private international law under the Convention; notions of arbitrability and arbitral award; procedures for the enforcement of awards; nullity, invalidity, and conflict of laws under Articles II(3) and V(1)(a); the incapacity defence under Article V(1)(a); deviations from procedure; autonomous boundaries as to what falls under the issue of scope; and public policy under the Convention. The first and only resource of its kind, this book provides an invaluable clarification of the extent to which the Convention leaves room for the application of domestic law and, if so, how to determine which particular domestic law may be applicable. It will be welcomed by counsel, judges, arbitrators, and academics throughout the States that have signed the New York Convention.

Download or read book Applying Municipal Law in International Disputes written by Paul B. Stephan and published by BRILL. This book was released on 2024-03-04 with total page 320 pages. Available in PDF, EPUB and Kindle. Book excerpt: The view that international law functions independently of municipal law (hermetically), does not reflect contemporary international practice. Instead, international law in the modern era engages intensively and extensively in projects that occupy areas traditionally governed by municipal law, such as business regulation as well as the rights and duties of persons. The resulting overlap in legal dominions requires a new conceptualization of the relationship between international and municipal law. This book explores the mechanisms employed to allocate authority to international and municipal law in international disputes. Taking a broader view, this course explores the work of international bodies, domestic courts, and informal dispute resolution, including diplomacy and the use of coercive measures. It identifies the mechanisms used to manage the overlapping dominions of international and municipal law as pooling, referral, and nesting. In the final chapter, the book explores how different opportunities and ambitions for international law can affect the use of these mechanisms in particular international disputes.

Download or read book Animals in International Law written by Anne Peters and published by BRILL. This book was released on 2021-05-25 with total page 656 pages. Available in PDF, EPUB and Kindle. Book excerpt: The plight of animal individuals and species inflicted on them by human activity is a global problem with detrimental repercussions for all humans and for the entire planet. This book gives an overview of the most important international legal regimes that directly address and indirectly affect animals. It covers species conservation treaties, notably the international whaling regime, the farm animal protection rules of the EU, international trade law and the international law of armed conflict. It also analyses the potential for an international regime of animal rights. Finding that international law creates more harm than good for animals, the auther suggests progressive treaty interpretation, treaty making and animal interest representation to close the animal welfare gap in international law. A body of global animal law needs to be developed, accompanied by critical global animal studies.

Download or read book Treaties and their Practice written by Georg Nolte and published by BRILL. This book was released on 2019-03-25 with total page 288 pages. Available in PDF, EPUB and Kindle. Book excerpt: The book describes the development of certain important treaties from the perspective of their practice, with a view to assessing whether these treaties are, or have been, on the “rise” or in “decline”. Following a glance at major European peace treaties prior to the UN Charter, the book focuses on developments over the last thirty years with respect to the UN Charter and its rules on the use of force, human rights treaties, the WTO agreements, investment treaties, and environmental treaties. It looks at these treaties from the perspective of an observer as well as from the perspective of a practitioner who is called to apply a treaty, taking into account the rules of interpretation under the Vienna Convention on the Law of Treaties. The book describes, in particular, how the International Law Commission has elucidated the significance of the rules of interpretation in its conclusions on “Subsequent agreements and subsequent practice in relation to the interpretation of treaties” (2018), and it connects this work with the broader developments.

Download or read book Forum Shopping Despite Unification of Law written by Franco Ferrari and published by BRILL. This book was released on 2021-08-16 with total page 464 pages. Available in PDF, EPUB and Kindle. Book excerpt: According to some commentators, forum shopping is an “evil” that must be eradicated. It has been suggested that the unification of substantive law through international conventions constitutes one way to achieve this outcome. This book shows that the drafting of uniform substantive law convention cannot prevent forum shopping. The reasons are classified into two main categories: convention-extrinsic and convention-intrinsic reasons. The former category comprises those reasons upon which uniform substantive law conventions do not have an impact at all. These reasons range from the costs of access to justice to the bias of potential adjudicators to the enforceability of judgments. The convention-intrinsic reasons, on the other hand, are reasons that relate to the nature and design of uniform substantive law conventions, and include their limited substantive and international spheres of application as well as their limited scope of application, the need to provide for reservations, etc. This book also focuses on another reason why forum shopping cannot be overcome: the impossibility of ensuring uniform applications and interpretations of the various uniform substantive law conventions.

Download or read book Establishing Norms in a Kaleidoscopic World written by Edith Brown Weiss and published by BRILL. This book was released on 2022-02-22 with total page 536 pages. Available in PDF, EPUB and Kindle. Book excerpt: We live in a kaleidoscopic world in the new Anthropocene Epoch. This calls for a more inclusive public international law that accepts diverse actors in addition to States and other sources of law, including individualized voluntary commitments. Norms are critical to the stability and legitimacy of this international system. They underlie responses to rapid change, to new technological developments and to problems of protecting commons, promoting public goods, and providing social and economic justice. Certain fundamental norms can be identified ; others are emerging. The norm of mutual accountability underpins the implementation of other norms. Norms are especially relevant to frontier doit-yourself technologies, such as synthetic biology, digital currencies, cyber activity, and climate interventions, as addressed in the book. Reconceiving public international law lessens the sharp divide between public and private law and between domestic and international law.