Building on the success of the first edition, the second edition of The Law of Arbitration: South African and International Arbitration sets out the South African common law, legislation and local and international case law applicable to each stage of the arbitration cycle, including the arbitration agreement, intervention by courts pending arbitration, the appointment of and challenges to the arbitrators, the pleadings and arbitration proceedings, and the arbitration award. A brief overview of alternative dispute resolution approaches is also provided as a contextual introduction.

The second edition now incorporates the new International Arbitration Act 15 of 2017 and updates the references to local case law as well as international case law relating to the UNCITRAL Model Arbitration Law (MAL). Act 15 of 2017 cements South Africa’s position not only as a venue for international arbitration but also for the enforcement of foreign arbitral awards, making this title indispensable for South African arbitrators wanting to gain experience in international arbitration.

The following appendices are incorporated in the second edition of The Law of Arbitration:

• The Arbitration Act 42 of 1965;
• The Rules for the Conduct of Arbitrations (2018 Edition) of the Association of Arbitrators (Southern Africa);
• The International Arbitration Act 15 of 2017, together with its Schedules (UNCITRAL Model Law on International Commercial Arbitration; UNCITRAL Conciliation Rules; Convention on The Recognition and Enforcement of Foreign Arbitral awards)

The New York Convention is regarded as one of the most successful treaties in the past fifty-five years. Its simplicity and brevity in wording but complexity and diversity in application have triggered endless discussions, debates and writings. Rethinking the New York Convention - A Law and Economics Approach for the first time offers a unique jurisprudence-oriented analysis by applying two major analytic approaches, namely Darwinian legal theory and game theory. Four key topics are analysed in this book: the evolution of the treaty, the competition among various jurisdictions, lex mercatoria and governing law in arbitration, and the doctrine of public policy. This choice of key topics offers the opportunity to look into these so-called core dilemmas surrounding the New York Convention from different angles, inspiring the reader to think outside the box. In addition, against the background of the current financial crisis, this book focuses on the use of the New York Convention in the context of global governance and discusses the need for a reform of the existing regime of cross-border transactions and activities. Rethinking the New York Convention - A Law and Economics Approach explores the topic in a refreshing style and will be of use for anyone who is interested in arbitration or law and economics.

This leading commentary on international commercial arbitration, now in its sixth edition, is an essential guide for arbitrators, lawyers, and students. Based on the authors' extensive experience as counsel and arbitrators, it provides an updated explanation of all elements of the law and practice of arbitration. This text provides an authoritative guide to the international arbitral process, from the drafting of the arbitration agreement to the enforcement of arbitral awards. The sixth edition has been updated to incorporate reference to the latest significant developments in the field such as the new LCIA, ICC and UNCITRAL Rules and new IBA Guidelines. There will also be an increased reference to international arbitral authority and practice from beyond Europe (China, India, and the US). Following the chronology of an arbitration, the book covers applicable laws, arbitration agreements, the establishment and powers of a tribunal, the conduct of proceedings and the role of domestic courts. In addition, it provides an in-depth examination of the award itself, and comments on the special considerations applying to arbitrations brought under investment treaties. It draws on examples of the rules and practice of arbitration at the International Chamber of Commerce, the London Court of International Arbitration, the American Arbitration Association, the International Centre for Settlement of Investment Disputes and the United Nations Commission on International Trade Law.

At a time of unprecedented growth in arbitrations between investors and States over energy resources, International Energy Investment Law: The Pursuit of Stability examines and assesses the variety of contract- and treaty-based instruments in commercial and international law that strive to protect the respective interests of investors and States in the international energy industry. It covers most forms of energy, especially oil and gas, and considers issues arising from energy network operation including transit. It pays particular attention to their practical impact through an analysis of their enforcement by arbitration tribunals and bodies, such as ICSID, the ICC and the LCIA. The book also examines growing challenges presented by environmental and human rights concerns to the stability of long-term agreements.
Investors in the international energy industry have long sought to secure guarantees from host States to mitigate the risk of unilateral revision of the deal at a future date. In recent years the traditional method of securing such guarantees has been supplemented by an unprecedented growth of international investment law in the form of BITs, MITs and other treaty-based instruments. Many States have also introduced guarantees into their domestic legislation. This 'multi-tier' regime of stability has fundamentally altered the legal framework for energy investors and host States and offers extensive scope for international arbitration in the event of disputes. It is a system that is currently being tested in a number of high-value commercial disputes as a result of a wave of unilateral State action, most evidently in Latin America and East Europe. The protections for investors are being tested as arbitrators develop new notions of 'legitimate expectations' and give content to 'fair and equitable treatment', while mapping out more precisely the duties which investors have to host States. This book examines critically the interaction between contract and treaty forms of stability in the new multi-tier setting, including two highly detailed regional case studies of Latin America and East Europe. In its concluding section, it looks forward to new challenges arising from climate change, human rights and environmental issues.

In this book, senior judges and academics at the forefront of transnational commercial law in Asia, Australia, Europe, the US, and elsewhere, reflect on the implications of anti-globalism and the COVID-19 pandemic on international commercial dispute resolution (ICDR). The chapters consider: (1) What types of cross-border commercial disputes will arise in the future and what resources will be needed to respond to them in a cost-effective, time-efficient, and equitable manner? (2) Is there still merit in a multilateral approach to transnational commercial law and ICDR, despite the closing of borders, the rise of protectionism, and the disruption of global supply chains? (3) What reforms and innovations should courts, arbitrators, and mediators contemplate when navigating the post-pandemic landscape? (4) Can the accelerated use of remote technology in ICDR (as prompted by the pandemic) be leveraged to enhance access to justice for all? With a focus on the current crisis in globalism, as well as the associated problems of ensuring justice and fairness in the resolution of cross-border commercial and investment-state disputes along the Belt-and-Road and elsewhere, the book will be an invaluable resource for academics, judges and practitioners alike.

If a dispute between commercial parties reaches the stage of arbitration, the cause is usually ambiguous contract terms. The arbitrator often resolves the dispute by applying trade usages, either to interpret the ambiguous terms or to determine what the given contract's terms really are. This recourse to trade usages does not create many problems on the domestic level. However, international arbitrations are far more complex and confusing. Trade Usages and Implied Terms in the Age of Arbitration provides a clear explanation of how usages, and more generally the implicit or implied content of international commercial contracts, are approached by some of the most influential legal systems in the world. Building on these approaches and taking account of arbitral practice, this book explores possible conceptual frameworks to help shape the emerging transnational law of trade usage. Part I covers the treatment and conceptual grounding of usages and implied terms in the positive law of influential jurisdictions. Part II defines the approach to usages and implied terms adopted in the design and implementation of important uniform law instruments dealing with international business contracts, as well as in the practice of international commercial arbitration. Part III concludes the book with an outline of what the conceptual grounding of trade usages could be in the transnational law of commercial contracts.

It aims to identify the reasons behind the approach toward international arbitration and the role that public policy plays in this regard. Although some previous scholarships have addressed the application of public policy exception in international arbitration, no study has provided a systematic and more in-depth analysis of the application of public policy exception as applied in the United States and Turkey. This book uses a comparative study approach to attempt to fill this lacuna.

This book presents a selection of the latest arbitration cases, materials, and commentaries from China. It aims to provide information on the theory and practice of arbitration combined. It is intended to provide readers with a useful resource to guide them when they encounter actual China-related arbitration cases. This book is a valuable resource for all practitioners concerned with international and foreign-related arbitration matters in China, global law firms, companies engaged in multinational business, jurists, and academics.

Lawyers involved in international commercial transactions know well that that unforeseen events affecting the performance of a party often arise. Not surprisingly, exemptions for non-performance are dealt with in a significant number of arbitral awards. This very useful book thoroughly analyzes contemporary approaches, particularly as manifested in case law, to the scope and content of the principles of exemption for non-performance which are commonly referred to as A force majeure A| and A hardship. A| The author shows that the A general principles of law A| approach addresses this concern most effectively. Generally accepted and understood by the business world at large, this approach encompasses principles of international commercial contracts derived from a variety of legal codes. Its most important A restatements A| are found in the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) and two A soft law A| codifications of international commercial contract law: the UNIDROIT Principles of International Commercial Contracts and the European Principles of Contract Law (PECL).Establishing specific standards and A case groups A| for the exemptions under review, the analysis treats such recurring elements and claims as the following:A { impossibility of performance;A { frustration of contract;A { impracticability;A { interference by the other party;A { contractual risk allocations;A { unforeseeability of an impediment;A { third party responsibility;A { effect of mandatory rules;A { excluded rights;A { threshold tests; andA { irreconcilable differences. The book is a major contribution to the development of the use of general principles of law in international commercial arbitration. In addition, as an insightful investigation into the fundamental question of the borderlines of the principle of sanctity of contracts, this book is sure to capture the attention of business lawyers and interested academics everywhere.

There has been growing enthusiasm for the use of mediation to seek a resolution for cases arising under the Hague Convention of October 25, 1980 on the Civil Aspects of International Child Abduction. However, despite being endorsed by the conclusions of experts, judicial comment, and even legislative changes, there have been relatively few cases where mediation has played a significant role. It has been suggested that the reason underlying this dichotomy between the widespread support for the use of mediation and the current limited practice is that there are several key questions regarding the use of mediation in the context of the Convention which remain to be answered. Specifically, what is meant by Convention mediation? How can a mediation process fit within the constraints of the Convention? Why offer mediation in Convention cases given the existing legal framework? This book addresses these questions and, in doing so, encourages a movement from enthusiasm about the use of mediation in the Convention context to greater practice. It will be useful as a point of reference for practitioners, and stimulating and interesting to academics. (Series: Studies in Private International Law - Vol. 7)

The book systematically describes the theory and practice of ICSID annulment proceedings by thoroughly analyzing this mechanism in light of the annulment decisions rendered so far as well as the publications on the issue.
Organized to suit the needs of the practitioner, it outlines the recent trends in the area, providing the most up to date analysis of the subject. It also addresses key topics involving ICSID annulment such as the procedural issues which frequently arise in this type of proceedings, for example admissability of new evidence and arguments in annulment proceedings, res judicata in resubmitted cases.
The sections on each ground for annulment include an analysis of the applicable standard as well as a detailed description and study of each annulment decision that addressed the respective ground, creating an authoritative and complete resource.

This book depicts and evaluates, in a European context, the pleas and actions which parties may make use of to dissolve the parallel jurisdiction of a national court and an arbitral tribunal. The author undertakes a thorough comparative analysis of the motivations for, and practice of, such pleas and actions with special regard to the major hubs where elaborate arbitration laws are tried and tested by the arbitration community - Germany, France, Switzerland, and England. On the basis of four scenarios of parallel proceedings before national courts and arbitral tribunals, the analysis tackles such issues and topics as the following: motivations for initiating parallel proceedings from the various parties' perspectives; remedies available to parties in situations of jurisdictional conflicts; effect of the principle of competence-competence on national courts' review of arbitration agreements; pleas restricting national courts' exercise of jurisdiction to a review of core principles (arbitration defence); self-restraining pleas independent of an arbitration agreement (plea of litispendence); actions for declaratory relief; actions aimed at restraining another court's or tribunal's jurisdiction (anti-suit/anti-arbitration injunctions); pleas invoked to avoid procedural inefficiencies and inconsistencies (plea of res judicata); counsel's duty of care and arbitral tribunal's mandate to issue an enforceable award; and litigation culture versus arbitration-friendliness. Throughout, the author underlines the importance and applicability of relevant multinational and supranational conventions, institutional arbitration rules, the International Law Association's recommendations, national laws in force and national courts' case law including the case law of the European Court of Justice as regards the interface of arbitration and the Brussels Regulation. In its focus on the jurisdictional pleas and actions available where proceedings on the same subject matter and between the same parties are pending both before a national court and an arbitral tribunal, this book has no peers.

The modern tendency to restrict international arbitration to matters of commerce and investment is succumbing to a renewed recognition of the original impetus for dispute resolution by arbitration - i.e., matters of public international law, most importantly the settlement of disputes that pose a threat of international conflict. Recent developments suggest a renaissance of public international arbitration, most clearly manifested in the present flourishing of the Permanent Court of Arbitration (PCA), the oldest existing dispute settlement institution in international law. As the calls for the development of new and more appropriate methods for dispute settlement in international law increased during the 1990s, the PCA undertook a structural reform and is today a vital forum for dispute settlement, with scores of arbitrations currently pending under its auspices. This book - the most comprehensive study of the institution to date, covering its history, its present status, and its future prospects - proves the PCA's contemporary relevance within the international dispute settlement framework. Among aspects of the PCA's work covered are the following: how public international arbitration functions in comparison to other means available for dispute settlement in international law; the PCA's historical contributions to the current dispute settlement framework; arbitrations between a state and a non-state actor that are in whole or in part governed by public international law; the fields in which public international arbitration plays a revived role; the PCA's present-day institutional framework and its current activities; the prospects for public international arbitration and the PCA in the dispute settlement framework of the twenty-first century; and proposals to increase the PCA's activities in future and to sustain and enhance the institution's ongoing revitalization.

Arbitration Law in America: A Critical Assessment is a source of arguments and practical suggestions for changing the American arbitration process. The book argues that the 80 year-old Federal Arbitration Act badly needs major changes. The authors, who have previously written major articles on arbitration law and policy, here set out their own views and argue among themselves about the necessary reforms of arbitration. The book contains draft legislation for use in international and domestic arbitration and a detailed explanation of the precise justifications for proposed legislative changes. It also contains two proposals that might be deemed radical - to ban arbitration related to the purchase of products by consumers and to prohibit arbitration of employment disputes. Each proposal is vetted fully and critiqued by one or more of the other co-authors.

Although international arbitration has emerged as a credible means of resolution of transnational disputes involving parties from diverse cultures, the effects of culture on the accuracy, efficiency, fairness, and legitimacy of international arbitration is a surprisingly neglected topic within the existing literature. The Culture of International Arbitration fills that gap by providing an in-depth study of the role of culture in modern day arbitral proceedings. It contains a detailed analysis of how cultural miscommunication affects the accuracy, efficiency, fairness, and legitimacy in both commercial and investment arbitration when the arbitrators and the parties, their counsel and witnesses come from diverse legal traditions and cultures. The book provides a comprehensive definition of culture, and methodically documents and examines the epistemology of determining facts in various legal traditions and how the mixing of traditions influences the outcome. By so doing, the book demonstrates the acute need for increasing cultural diversity among arbitrators and counsel while securing appropriate levels of cultural competence. To provide an accurate picture, Kidane conducted interviews with leading international jurists from diverse legal traditions with first-hand experience of the complicating effects of culture in legal proceedings. Given the insights and information on the rules and expectations of the various legal traditions and their convergence in modern day international arbitration practice, this book challenges assumptions and can offer a unique and useful perspective to all practitioners, academics, policy makers, students of international arbitration.

The Iran-U.S. Claims Tribunal, concerned principally with the claims of U.S. nationals against Iran, is the most important international claims tribunal to have sat in over half a century. Its jurisprudence is bound to make a uniquely important contribution to international law and, in particular, the law relating to aliens. The series is the only complete and fully indexed report of the decisions of this unique tribunal. These reports are essential for all practitioners in the field of international claims, academics in private and public international law and comparative lawyers as well as all governments and law libraries. Each volume contains a detailed consolidated index and tables of cases covering the whole series to date.

The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards is without a doubt the single most important treaty in the field of international commercial arbitration, and has enjoyed remarkable success over its half-century of use. It has been praised as a convention which 'perhaps could lay claim to be the most effective instance of international legislation in the entire history of commercial law.' In honour of the Convention's fiftieth anniversary, outstanding scholars of international commercial arbitration have contributed to this comprehensive commentary. Following a design calling for article-by-article analysis (or even, in the case of the crucial Article 5, by sub-article), this unique book provides an in-depth analysis of the Convention's first fifty years in light of internationally accessible case law from a wide range of jurisdictions around the world. In so doing it greatly clarifies and enhances our knowledge of both the theoretical underpinnings and the practical application of the Convention in its global context. The authors, each of whom is an experienced practitioner in the field of international arbitration, draw on experience in a wide variety of national jurisdictions. In addition to drafting chapters independently, each has made invaluable contributions to other authors' chapters. Authoritative case law research was further provided by dozens of contributors with expertise in specific jurisdictions worldwide. The analysis thoroughly covers the major issues that have arisen in the application of the Convention, including the following: - the use of reservations made by Contracting States; - the distinctions between recognition and enforcement and between recognition sought at the seat of the arbitration and outside the seat; - the role of the courts in reviewing arbitral awards and, in particular, the Convention's focus on safeguarding due process standards; - the more favourable rightsA" principle embodied in Article VII(1); - the relevance of forum shopping and asset spotting to the application of the Convention; and - the role of formalities and formalism. The end result is an invaluable work that will prove enormously useful to all international commercial arbitration practitioners and scholars, regardless of location.

This book offers the ideal way for a foreign lawyer to get in touch with litigation practice and procedure in the Netherlands. Whether a lawyer comes to Dutch litigation in the normal course of business, or whether the brief and inexpensive kort geding (preliminary relief proceedings) is the main attraction, this concise guide provides a solid understanding of the practical implications of Dutch litigation. This is the indispensable tool for meaningful exchanges with your Dutch litigation counsel, prior or during any lawsuit. The authors are seasoned practitioners, experienced in representing international clients in the Dutch legal arena. Expertly they cover the three types of dispute resolution practiced under Dutch law: litigation in the civil courts, including corporate litigation in the Enterprise Court, as well as recent changes to the Code of Civil Procedure and discussion of likely trends arising from new and pending legislative proposals; arbitration, including discussion of mediation and expert determination; and administrative litigation, including admissibility, administrative review, jurisdiction, preliminary relief, and judicial review in the civil courts.

It is increasingly held that international commercial arbitration is becoming colonized by litigation. This book addresses, in a range of ways and from various locations and sites, those aspects of arbitration practice that are considered crucial for its integrity as an institution and its independence as a professional practice. The chapters offer multiple perspectives on the major issues in play, highlighting challenges facing the institution of arbitration, and identifying opportunities available for its development as an institution. The evidence of arbitration practice presented is set against the background of practitioner perceptions and experience from more than 20 countries. The volume will serve as a useful resource for all scholars and practitioners interested in the institution of arbitration and its professional practices.

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.

Due to the nature of the arbitration process, provisional measures - especially interim protection of rights - tend to play a disproportionate role in international commercial arbitrations. Indeed, the need to clearly define such measures often constitutes the major stumbling block on the path to an effective resolution of a commercial dispute. This concise but enormously useful volume offers practitioners the information and advice they need to overcome this obstacle in the best possible way every time. The author covers all the relevant avenues of research and practice, from an overview of the concept of provisional measures to an in-depth analysis of the weight and enforceability of such measures. Along the way the treatment covers such crucial topics and issues as the following: scholarly analysis of the problems and uncertainties surrounding provisional measures, and their solutions in light of arbitral and judicial practice; the complex interaction of historical prejudices, political will, and business needs that impact the usefulness of provisional measures; choice of forum to seek provisional measures and the problems associated with such choice; complementary mechanisms to arbitration for interim protection of rights; standards of principles and procedures for the grant of provisional measures; and a comprehensive review of the arbitrators' power to grant provisional measures and court assistance to arbitration. The presentation examines, compares, and analyses seventy sets of arbitration rules on provisional measures (including the arbitration rules of the ICC, AAA, and LCIA), all of the major state laws on commercial arbitration, and detailed analyses of numerous ICC and AAA awards, most of which have not been published before. This new and fully researched book fulfils and important need for user-friendly and complete practical coverage of provisional measures in international commercial arbitration. It will be of great value to corporate counsel, international lawyers, and business people, as well as to students of dispute resolution.

Today, international investment law consists of a network of multifaceted, multilayered international treaties that, in one way or another, involve virtually every country of the world. The evolution of this network continues, raising a host of issues regarding international investment law and policy, especially in the area of international investment disputes. This Yearbook monitors current developments in international investment law and policy, focusing (in Part One) recent trends and issues in foreign direct investment (FDI). Part Two, then addresses the fundamental developments in European Union policy toward bilateral investment treaties, and helpfully annexes the key official European Union documents. With contributions by leading experts in the field, this title provides timely, authoritative information on FDI that can be used by a wide audience, including practitioners, academics, researchers, and policy makers.

"Eminently readable. One need look nowhere else. I regularly teach courses on this subject and have encountered no work that comes close to achieving what von Papp has achieved." George A Berman, Columbia Law School, European Law Review This timely book addresses the main areas of tension between EU law and international arbitration, looking at both commercial and investment treaty arbitration. It opens pathways for practical solutions based on communication between the different regimes. At the same time, it offers a sound theoretical basis that allows for addressing the core problem as normative conflict between legitimate public interests and the 'privatisation of justice'. The book is divided into five parts. It introduces key aspects of the overall tension between EU law and international arbitration, before setting out the theoretical framework that understands EU law, international commercial arbitration, and investment treaty arbitration as closed regimes. The author then addresses the core problem of finding the limits to contracting out of the EU legal regime, both on a jurisdictional and a substantive level. This is then linked to the question of trust-building in legal outcomes of the relevant regimes. The book concludes with a short summary and key theses. Combining a theoretical and normative with a more pragmatic approach to very topical issues, this book offers invaluable insights for academics and practitioners, private and public, commercial and investment treaty lawyers alike.

The Yearbook of International Sports Arbitration is the first academic publication aiming to offer comprehensive coverage, on a yearly basis, of the most recent and salient developments regarding international sports arbitration, through a combination of general articles and case notes. The present volume covers decisions rendered by the Court of Arbitration for Sport (CAS) and national courts in 2015. It is a must-have for sports lawyers and arbitrators, as well as researchers engaged in this field. It provides in-depth articles on burning issues raised by international sports arbitration, and independent commentaries by esteemed academics and seasoned practitioners on the most important decisions of the CAS (e.g. the Dutee Chand case) and national courts (e.g. the Pechstein and Wilhelmshaven decision rendered by the OLG Munchen and OLG Bremen in Germany). Dr. Antoine Duval is Senior Researcher for International and European Sports Law at the T.M.C. Asser Instituut in The Hague. He holds a Ph.D. on the interaction between Lex Sportiva and EU Law from the European University Institute in Florence. Prof. Antonio Rigozzi teaches international arbitration and sports law at the University of Neuchatel, Switzerland, and is the partner in charge of the sports arbitration practice at Levy Kaufmann-Kohler, a Geneva-based law firm specializing in international arbitration.

This book deals with set-off in international arbitration proceedings. In these proceedings, set-off is frequently the tool relied upon to resist a claim. At the same time, the legal intricacies make it hard to use. The first part of the book provides a survey of set-off, including its definition, significance, and functions. The second part offers a thorough comparative analysis of selected European laws of set-off and reveals the dramatic differences between them. The third and final part of the book deals with the problematic consequences of these differences and shows the limits and the inadequacy of the traditional choice-of-law doctrines. While demonstrating how to overcome the practical hurdles of the present situation, the third part also offers normative alternatives that may offer significant help in the adjudication of commercial disputes. This will be an invaluable reference for arbitration and commercial practitioners.