This innovative book proposes a fundamental rethink of the consensual foundation of arbitration and argues that it should become the default mode of resolution in international commercial disputes. The book first discusses the most important arguments against this proposal and responds to them. In particular, it addresses the issue of the legitimacy of arbitrators and the compatibility of the idea with guarantees afforded by European human rights law and US constitutional law. The book then presents several models of non-consensual arbitration that could be implemented to afford neutral adjudication in disputes between parties originating from different jurisdictions' to offer an additional alternative forum in the doctrine of forum non conveniens or to save judicial costs. The first dedicated exploration into the groundbreaking concept of default arbitration, Rethinking International Commercial Arbitration will appeal to scholars, students and practitioners in arbitration and international litigation.

After its failure to bring an end to the Balkan wars of the 1990s, the European Union has worked hard to close the infamous 'capabilities-expectations gap' in the field of the European Security and Defence Policy (ESDP). In a very short timeframe, the EU agreed to the following: the institution of new political and military bodies; peculiar structures and procedures to ensure political guidance and strategic direction; principles for consultation and cooperation with non-European allies and other international organisations such as the UN and NATO; measures to enhance the Union's military and civilian capabilities; and the adoption of an acquis securitaire, including a European Security Strategy. The most striking manifestation and raison d'etre of the ESDP is the European Union's capacity to move beyond the paper security structures and back its diplomatic efforts by action on the ground. With the launching of more than twenty ESDP operations in barely five years' time, the EU has affirmed its operational capacity in ESDP. While most of the early ESDP missions were fairly successful, they have also revealed shortfalls, bottlenecks as well as broader issues in crisis management. In this book, prominent academics and leading practitioners explore this wide variety of policy and legal aspects of ESDP and present the lessons which should be taken to heart now that the EU is facing its 'maturity test' as an international crisis manager in high-risk theatres around the world. The book will be an important tool for decision-makers, officials and academics involved in the further development of ESDP. Its contents incorporate the text and potential effects of the Lisbon Treaty and the ECJ's judgment in the Small and Light Weapons/ECOWAS case. Dr Steven Blockmans is a Senior Research Fellow in EU law and Deputy Head of Research at the T.M.C. Asser Instituut, The Hague.

Prized by practitioners since the first edition appeared in 1998, "Dispute Resolution in Asia" provides a much wider spectrum of Asian laws and approaches to dispute resolution than is traditional in comparative studies. It examines arbitration, litigation, and mediation in thirteen countries, with detailed practical essays each written by a senior lawyer with vast knowledge and experience of dispute resolution in his or her own country. Contributions vary in style and content and thus reflect the diversity of legal systems and cultures in Asia. The third edition of this popular book has been expanded by the inclusion of a chapter on Korea and a discussion of investment treaty arbitrations. All chapters have been revised and updated to incorporate recent developments, such as the enactment of relevant new legislation in Malaysia. Statistics on arbitration centres in Asia are also included. As a comprehensive practical guide to the practice and procedure of dispute resolution in the important trading countries of Asia, this book will be of great value to corporate counsel and international lawyers and business people, as well as to students of dispute resolution.

This publication succeeds previously published seminars of the Max Planck Institute for Comparative Public Law and International Law (Heidelberg, Germany) dealing with evolving principles and new developments in international law. Due to the limits of traditional dispute settlement in international law and the ongoing scholarly debate on those limits, it focuses on possible innovations and functional approaches to improve international dispute settlement mechanisms. In doing so, it covers a wide variety of topics such as procedures of the WTO, advisory opinions of international courts and tribunals, the privatization of international dispute settlement, the interaction between counsels and international courts and tribunals, and the law-making function of international courts. The aim of this publication is to contribute to the cross-fertilization between these mechanisms and to offer creative impulses for the promotion of international dispute settlement.

This book investigates how a North African solar thermal power plant can be set up under the guidance of European investors (e.g. the Desertec Concept) as a Public Private Partnership (PPP). It outlines the importance of early awareness of contract-related risks, investment risks and dispute settlement, arguing that commercial and investment arbitration are the best tools for settling disputes regarding a large-scale solar thermal project. Furthermore, by comparing institutional and ad hoc arbitration, it shows that the former offers highly suitable support. The latest developments in the area of investment arbitration under EU law and the general acceptance of arbitration in Islamic countries are examined in particular. This book also demonstrates that a solar thermal power plant must meet certain requirements to be considered an investment. These requirements are examined in relation to Art. 25 of the International Centre for Settlement of Investment Disputes Convention (ICSID Convention) and respective case law. Overall, the book offers valuable guidelines for investors and host states on how to successfully implement large-scale solar thermal projects.

In this second edition of Samir Saleh's major work on commercial arbitration in the Arab Middle East, the basic format has been maintained, while the author, drawing upon his intimate knowledge of the region and considerable practical experience as an arbitrator, has completely revised and updated the book so that it offers a fully modern account of domestic commercial arbitration practice, with an international dimension, under the sharia and in Syria, Lebanon and Egypt. The first part of the book, dealing with sharia, continues to draw on the four major sources of sharia, with illustrations taken from the four main Sunni schools that have influenced its development. This part underpins all the remaining chapters which deal in turn with different national systems, building on the discussion by reference to local statutes, judicial precedents and commentaries. Detailed analysis of law and practice is supported by extensive footnoting, guidance on further reading, and insights into the prevailing business practices within each country. For practising lawyers and arbitrators a feature which will be particularly welcome is the inclusion of up-to-date discussion of practice and procedure for the execution and enforcement of domestic and foreign awards, and the legal pitfalls awaiting the unwary. The new edition has also been considerably amplified to include international aspects of arbitration as reflected in judicial decisions and academic commentary in each territory.

This book offers a series of commentaries on noteworthy arbitral awards and court decisions on arbitration. All contributions focus on the practice of arbitration. Influential authors with proven arbitration experience share their insights on celebrated and less well-known cases, drawn from various countries, various arbitration institutions and including both commercial and investment arbitration. This collection of essays celebrates the work and scholarship of Hans van Houtte, who has been a professor of international commercial arbitration at the University of Leuven for more than 20 years. In addition to his widely -praised contribution to the theory of arbitration, Professor Van Houtte has built a long career in the practice of arbitration, presiding over a vast array of arbitral tribunals and holding appointments to international tribunals, most recently as president of the Iran-US Claims Tribunal. Hans van Houtte has always been concerned with the practical usefulness of scholarly writings, and this book respects this approach. This volume will prove essential for all arbitration practitioners and will also be of great interest also to academics and research students with an interest in international arbitration.

Arbitrations involving more than two parties and complex multicontractual issues represent more than one third of international arbitration cases, and this proportion increases every year. The difficult and specific issues raised by such arbitrations have been the object of abundant case law, derived from both arbitral tribunals and national courts, as well as doctrinal writings. This thorough and up-to-date guide to this area of practice - the first and only such guide available - provides a comprehensive analysis of all the issues arising from multiparty-multicontract arbitrations, including those involving States and groups of companies. The numerous factors and problems analysed in depth include the following: theories on the basis of which courts and arbitral tribunals determine who are parties to the arbitration clause; whether an arbitration clause may be extended to non-signatories; to what extent one can bring to a single arbitration proceeding the various parties who have participated in a single economic transaction through several contracts; whether a respondent can join other defendants to the arbitration, be they privy to the arbitration agreement or third parties; whether a party to a complex contractual structure can intervene voluntarily in the proceedings; and under what conditions separate arbitration proceedings may be consolidated. It also analyses: how and to what extent one can overcome the inconveniences that arise from having several parallel proceedings; appointment of arbitrators when the various parties to the dispute have divergent interests; res judicata, and in particular whether an arbitral tribunal should take into consideration an arbitral award rendered in a connected arbitration arising from the same project; and enforcement of multiparty-multicontract awards. The author proposes concrete solutions to these problems, and also offers the first analysis of the special issues raised by the latest development in international arbitration, class actions. Features of particular value to the practitioner include in-depth analysis of more than a hundred and twenty ad hoc and institutional awards rendered under the auspices of the ICC and other institutions; analysis of relevant national case law based on nearly 200 court decisions from the United States, France, Switzerland, England, Australia, Canada, Belgium and other countries; and appendices specifying multiparty-multicontract arbitration clauses, provisions of international conventions, national legislations and institutional rules, and institutional rules on class arbitrations. Corporate counsel, international arbitrators, and lawyers having to deal with multiparty-multicontract disputes will find this book of immeasurable value in their day-to-day work. Law professors and students of dispute resolution have here a unique consideration of an increasingly salient aspect of current international practice.

The law persists because people have reasons to comply with its rules. What characterizes those reasons is their interdependence: each of us only has a reason to comply because he or she expects the others to comply for the same reasons. The rules may help us to solve coordination problems, but the interaction patterns regulated by them also include Prisoner's Dilemma games, Division problems and Assurance problems. In these "games" the rules can only persist if people can be expected to be moved by considerations of fidelity and fairness, not only of prudence.
This book takes a fresh look at the perennial problems of legal philosophy - the source of obligation to obey the law, the nature of authority, the relationship between law and morality, and the nature of legal argument - from the perspective of this conventionalist understanding of social rules. It argues that, since the resilience of such rules depends on cooperative dispositions, conventionalism, properly understood, does not imply positivism.

A group of scholars in the area of civil procedure discuss the fundamental emerging problem concerning the abuse of procedural rights. The main features of this problem, such as: the theoretical and moral implication of procedural abuses, the subjects who may commit them, the typologies of abusive practices, the consequences and analytical perspective. The emergence and the legal characters of these issues are studied with reference to a large number of systems. A comparative framework is provided by the general and final reports.

With the Arbitration Act of 2006, Austria consolidates its emerging role as a seat for arbitration proceedings affecting Central and Eastern Europe. Based to a significant extent on the UNCITRAL Model Law, which is fast becoming an international standard, Austria's new law is applicable in any proceedings involving parties from any country. Assembled with detailed commentary in footnotes by Christoph Liebscher, a leading Austrian arbitration specialist and a member of the committee that drafted the law, this definitive presentation of the Austrian Arbitration Act of 2006 provides all of the following: text and notes in four languages - English, Russian, French, and German - so as many readers as possible can study the legislation in their own language; concise footnotes to nearly every article, offering easy-to-follow applications, examples, and clarifications; and a wealth of general information useful for non-specialists who must advise on the drafting of arbitration agreements. This book will be of great practical value to arbitration practitioners, to international business people and their counsel, as well as to academics in arbitration and international trade law, especially in the context of Central and Eastern Europe.

The Netherlands Arbitration Institute (NAI) is the most prestigious institute in the Netherlands for the arbitration of commercial disputes. While NAI arbitration is the dispute resolution mechanism of choice of many Dutch corporations and public entities, it is increasingly agreed on by foreign parties selecting the Netherlands as a neutral venue for their potential disputes. This excellent volume, a rule-by-rule guide to the NAI Arbitration Rules, is not only the first such handbook in English, but the most comprehensive and detailed in any language. In addition, it provides a unique commentary in English on important elements of Dutch arbitration law. Drawing on case law from arbitral tribunals and state courts and on extensive personal experience, members of the arbitration team of the Dutch law firm De Brauw Blackstone Westbroek N.V. provide in-depth commentary on each provision of the NAI Arbitration Rules and on arbitration-related court proceedings in the Netherlands under the Dutch Arbitration Act. Focusing on disputes arising from (among others) share purchase agreements, joint venture agreements, licence agreements, franchise agreements, finance agreements, contractor agreements, distribution agreements, and agreements for the sale of goods, the analysis covers such crucial factors of the NAI system as the following: * the use of the list procedure for the appointment of arbitrators; * the central role of the Administrator; * the Dutch concept of binding advice; * contractual relationships and exclusion of liability; * the separability of the arbitration agreement; * freedom in determining and applying rules of evidence; * the mechanisms for parties to seek relief in summary arbitration proceedings; * costs of arbitration; and * the arbitral award, including the possibility of rectifying , supplementing and setting aside this award. The provision-by-provision analysis also compares the NAI Rules with both relevant proceedings in the Dutch state courts and, inter alia, ICC and UNCITRAL Arbitration Rules and to practice under such other rules. The authors of this matchless book have faced many questions on the NAI Arbitration Rules, advised on the interpretation and correct application of those Rules, and defended such interpretation before tribunals and courts. In this book they share their experience, insights, and expertise. Counsel for corporate clients and public entities contemplating arbitration proceedings - as well as counsel to parties in NAI proceedings or related court proceedings - will find here an incomparable guide to the NAI system and Dutch arbitration law.

Expanding international trade forces practitioners, academics, and jurists to wrestle more often with damages claims in international law, navigating the varied treatments of damages issues from country to country. Many of these decisions may be difficult to find, let alone assess. This text guides the reader through complex damage issues and their treatment around the globe. It examines issues and problems presented in determining compensatory interest, moratory interest, damages in foreign currency, attorneys' fees and costs, and punitive damages in foreign currency. The book is aimed at law professionals such as attorneys, arbitrators, judges and scholars, as a resource on how different legal systems address damages issues.

"Marcossen has written a good book. Its tone is appropriate, its arguments are provocative, and its subject matter is significant."--"The Law and Politics Book Review," Vol.12, No. 7

"Brilliantly dissecting Thomas' and his philosophical mentor Antonin Scalia's conservatism, Marcossen resembles a master debater delivering a crushing final summation."-- "Booklist," August 2002

"Without a doubt, this is one of the best pieces of constitutional law scholarship published in some time."
-- "Choice"

Originalism is the practice of reviewing constitutional cases by seeking to discern the framers' and ratifiers' intent. Original Sin argues that the "jurisprudence of original intent," represented on the current Supreme Court by Justices Antonin Scalia and Clarence Thomas, has failed on its own terms. Attempts to determine the framers' intent have not brought greater determinacy and legitimacy to the process of constitutional interpretation. Instead, the method has been marked by the very flaws--including self-interested reasoning and the manipulation of doctrine--that originalists argue marred the jurisprudence of the judicial "activists" of the Warren Court.

Original Sin brings a rigorous review of the performance of the "new originalists" to the debate, applying their methodology to real cases. Marcosson focuses on the judicial decisions of Clarence Thomas, an avowed originalist who nevertheless advocates "color blind" readings of the Constitution which are at odds with the framers' ideas concerning anti-miscegenation and other laws. After critiquing what he sees as a troubling use of originalism and explaining why it has failed to provide a consistent basis for constitutionaldecision-making, the author goes on to offer an alternative approach: one that lends greater legitimacy to the Court's interpretations of the Constitution.

Breaking through conceptual roadblocks that at bottom are based on a lack of exposure to valuation procedures rather than on any uncertainty about legal principles, this enormously useful volume is addressed particularly to the many arbitrators with sound commercial knowledge but little hands-on experience with valuation studies. It provides a clear understanding of the nuts and bolts of valuation methods, drawing on a prodigious wealth of standards and procedures endorsed by internationally respected institutions, as well as on relevant decisions of a wide variety of local, national, and international fora. It reviews tools that arbitrators may employ to reach their final compensation assessment on a principled basis. The book's many practical recommendations greatly elucidate the decision making processes entailed in three central aspects of the arbitrator's role:
- advance planning to enhance understanding of expert valuation evidence;
- identification of "apples-to-oranges" miscomparisons; and
- recognition of the true comparability between the business at issue and other examples offered in the expert evidence.
The presentation focuses not only on the legal standards applicable to the valuation (full or adequate compensation, reparations, restitution, actual loss, fair market value, fair or reasonably equivalent value, lost profits, etc.), but also on the informed judgment and reasonableness that must enter into the process of weighing the facts of each case and determining its aggregate significance.
In its practical assistance to arbitral tribunals presented with complex business valuation in the quantum phase of a hearing, this book shows a thoughtful andproactive arbitrator how to help him or herself and provides a full measure of the valuation expertise required. In a more deeply significant way, the author reveals how the arbitration community can move closer toward a common language and consistent principles -- a Valuation Mercatoria.

This work examines both the failures and successes of intervention by the international community into the internal conflicts that are plaguing the post-Cold War world. It examines the legal framework and the bureaucratic and political realities that govern intervention and helps to explain why performance has been so uneven. The strategy offered by the authors operates within the parameters of legal and political limits to improve effectiveness by increasing international cooperation. Although radical in the context of international intervention, it has strong precedents in both industry and in actual conflict resolution. It involves a move to decentralization of operations to the field, permitting those on the scene to exercise far greater responsibility than is now the case. It details models of success and argues that effective decentralization can be institutionalized. For this proposed strategy to be effective, reponsible leadership of international organizations and their member states requires reassurance. This reassurance can be provided by a process of systematic and joint planning for intervention performed at the highest level as well as by careful training within civilian agencies that deal with diplomacy or humanitarian services. All of the arguments and strategies developed by the authors are supported with examples developed from case studies of how to effectively accomplish their goal of mitigating the outbreaks of violent conflicts through improved international cooperation in intervention.

Following events such as the 2008 credit crunch and financial crisis, many sectors of the economy suffered; nevertheless, reinsurance managed to maintain its strong position in the market industry and the global economic arena. Arbitration has traditionally been used in reinsurance, due in no small part to its effective, time- and cost-efficient nature. Hence, reinsurance contracts often include arbitration clauses requiring that any and all disputes arising under the contract be resolved by arbitration. The current work provides an in-depth treatment of reinsurance arbitrations and the various issues they entail in the most representative jurisdictions for such arbitrations. It also aims to pave the way for future directions of arbitration in the context of reinsurance. Any participant in the reinsurance market arena looking for a roadmap to the fascinating legal environment in which reinsurance arbitrations operate would be well advised to have this book on hand. Following events such as the 2008 credit crunch and financial crisis, many sectors of the economy suffered; nevertheless, reinsurance managed to maintain its strong position in the market industry and the global economic arena. Arbitration has traditionally been used in reinsurance due in no small part to its effective, time- and cost-efficient nature. Hence, reinsurance contracts often include arbitration clauses requiring that any and all disputes arising under the contract be resolved by arbitration. The current work provides an in-depth treatment of reinsurance arbitrations and the various issues they entail in the most representative jurisdictions for such arbitrations. It also aims to pave the way for future directions of arbitration in the context of reinsurance.Any participant in the reinsurance market arena looking for a roadmap to the fascinating legal environment in which reinsurance arbitrations operate would be well advised to have this book on hand.

An inside look at crisis management in the 21st century, Feeding Frenzy tells the story of two companies at war with each other, and of the trial lawyers determined to keep the conflict on the front pages. The Ford-Firestone tire crisis was the biggest business story of 2000-2001. Deadly and mysterious rollover accidents of Ford Explorers with failing Firestone tires took a toll of more than 270 lives in the U.S. and at least 100 more in Venezuela and other hot-climate countries. In compelling narrative, Feeding Frenzy provides a richer case study than can be found in other books on crisis communications. The reader climbs into the front seat for an eventful ride with the Ford PR team, as the automaker tries to understand what's causing the maddening accidents. Firestone's recall of millions of tires does nothing to abate unprecedented scrutiny from international media, safety advocates and an angry U.S. Congress. All the while, trial lawyers are leaking a new inflammatory document virtually every day to journalists competing with one another to break the next big story in this epic crisis. Jon Harmon is a chief communications officer with experience in all facets of reputation management. Over a 23-year career at Ford Motor Company, Harmon served in numerous roles requiring adroit media relations. He was Ford's chief spokesman during national labor negotiations with the UAW, and for many of Ford's high-profile legal cases and safety issues. As head of public relations for Ford Truck, Harmon was thrust into defending the Ford Explorer throughout the epic Ford-Firestone tire crisis. Harmon is the author of the Force for Good Communications blog for "aspirational public relations" at www.forceforgoodcom.com.

It often seems today that no dispute is barred from resolution by arbitration. Even the fundamental question of whether a dispute falls under the exclusive jurisdiction of a judicial body may itself be arbitrable. Arbitrability is thus an elusive concept; yet a systematic study of it, as this book shows, yields innumerable guidelines and insights that are of substantial value to arbitral practice. Although the book takes the form of a collection of essays, it is designed as a comprehensive commentary on practical issues that emerge from the idea of arbitrability. Fifteen leading academics and practitioners from Europe and the United States each explore different facets of arbitrability always with a perspective open to international developments and comparative evaluation of standards. The presentation falls into two parts: in the first the focus is on the general features of arbitrability, its rationale and the laws applicable to it. In the second, arbitrability is specifically examined in the context of administrative, criminal, corporate, IP, financial, commercial, and criminal law This book has its origins in an International Conference on Arbitrability held at Athens in September 2005. Seven papers presented there are here reviewed and updated, and nine others are added. The subject of the book - arbitrability - is one that is much talked about, but seldom if ever given the in-depth treatment presented here. Arbitrators and other practitioners in the field will welcome the way the analysis moves logically from theory to practice regarding every issue, and academics will recognize a definitive treatment of arbitrability as understood and applied in the settlement of disputes today.

Throughout history, there has been conflict and the clashing of ideas. Although this has assisted in creating political and societal structures, it has also led to civil unrest, cases of severe discord, and war. Political Mediation in Modern Conflict Resolution: Emerging Research and Opportunities is a critical scholarly resource that examines the pursuit of peace in global civil war and conflict through the use of mediation. Featuring coverage on a broad range of topics, such as intercultural communication, social psychology, and conflict theory, this publication is geared towards academicians, students, and researchers seeking relevant and current research on governmental approaches to pursuing peace in instances of conflict and strife.