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.

Situated between Europe and the borders of China, the Eurasian region is seldom studied from an overall legal perspective. The book gives a first-time structured overview of trade-related aspects of international economic law, comparative commercial law, and dispute resolution in this region, focused on the countries in the Southern Caucasus, Central Asia, as well as Russia. It also addresses the Eurasian Economic Union. Law of International Trade in the Region of the Caucasus, Central Asia and Russia approaches international trade law with a combined public international law and comparative private law perspective, taking into account the global and European context.

China's foreign investment legal regime encompasses domestic laws governing inward and outward investments, investment treaties and the Belt and Road Initiative. Can China's foreign investment legal regime lead its two-way investments towards the country's five development goals (building technological capacity, deepening integration into the global economy, promoting green development, protecting security, and participating in global economic governance and rule-making)? Yawen Zheng pioneers a systematic study of China's foreign investment legal regime, finding that the regime has gradually made progress towards the development goals, but the effort is diluted by obstacles such as outdated treaties, conflicts with the West, and domestic political challenges.

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.

Arbitration clauses in investment treaties often provide investors with a choice between ICSID arbitration, on the one hand, and rules originally drafted for commercial arbitration on the other. The Use of Commercial Arbitration Rules in Investment Treaty Disputes studies how domestic courts and commercial arbitration institutions impact the scope of arbitral tribunal jurisdiction when commercial arbitration rules are used. Based on extensive studies of court decisions and previously-unknown arbitral awards, Joel Dahlquist's book analyses the practice of domestic courts in reviewing treaty-based jurisdiction, and explains how the two most used commercial arbitration institutions - the ICC and the SCC - have drafted, interpreted and applied their arbitration rules in treaty-based disputes.

The Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards provides a detailed analysis of the judicial interpretation and application of the New York Convention by reference to case law from 45 Contracting States. The Guide, and the newyorkconvention1958.org website which supplements it, will become an essential tool that benefits all those involved in the interpretation and application of the New York Convention.

With the entrance of the European Union into the field of International Investment Law and Arbitration, a new specialist field of law, namely 'European Investment Law and Arbitration' is in the making. This new field of law draws on EU Law, Public International Law, International Investment Law, International Arbitration Law and Practice and International Economic Law, while other fields of law such as Energy Law are also relevant. This Review is the first law yearbook that is specifically dedicated to the field of 'European Investment Law and Arbitration'. Published under the auspices of Queen Mary University of London and EFILA.

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.

Based on analysis of 21 arbitral awards rendered in the “Spanish saga� cases, this book discusses the current challenges faced by international investment law in the renewable energy sector, addressing questions such as which facts led to the unprecedented number of investor-state arbitrations filed against Spain, whether arbitral awards rendered against Spain have an impact on future proceedings commenced against other states, and which legal grounds in international law serve, or may potentially serve, as the basis for investors’ claims in the renewable energy sector. Filip Balcerzak offers critical insight into generally applicable lessons for the future—both for adjudicators of renewable energy disputes and for policy-makers.

Read also Alexander Lott's blog on the recent Award of the Annex VII Arbitral Tribunal in the dispute concerning the Kerch Strait incident. Hybrid Threats and the Law of the Sea debates the practice of states that have resorted to discriminatory navigational restrictions or aggression against foreign ships and aircraft in densely navigated straits. The book explores both widely acknowledged and lesser-known maritime incidents that meet the characteristics of hybrid warfare or hybrid conflict. This research approaches hybrid threats from the perspective of the interrelationship between navigational restrictions, law enforcement, armed attack, and the legal regime of straits. It provides guidance for determining whether the rules of armed conflict or law enforcement are applicable to various naval incidents.

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.

In The Spratly Islands and International Law, Xuechan Ma offers a detailed analysis of legal solutions to achieve coexistence and cooperation in the Spratly Islands in the absence of maritime delimitation. This book challenges the classical territoriality model of jurisdiction in international law, which is ineffective in the Spratly Islands context where complex and contentious situations call for different solutions. Based on the substance-procedure duality of international law, Ma draws on extensive sources of international law including cases, treaties, practice and doctrine, and formulates novel, concrete proposals to indicate the way forward for the Spratly Islands.

In Jurisdiction and Admissibility in Investment Arbitration, Filippo Fontanelli offers an analysis of the subject for practitioners and scholars. The author undertakes two converging studies: first, the practice of investment tribunals is surveyed to provide a representative overview of how jurisdiction and admissibility operate in arbitration proceedings. Second, these concepts are studied in the wider framework of public international law litigation, in the attempt to solve the definitional issues, or at least trace them back to their theoretical background. The analysis shows that the confusion prevailing in investment arbitration is largely a legacy of the comparable confusion that affects the notions of jurisdiction and admissibility in all kinds of dispute settlement under international law. Whilst the confusion is often irrelevant in the practice, some instances arise where it affects the outcome of the proceedings. The essay discusses some of these instances and recommends adopting a novel approach, which hinges on judicial discretion as the critical element of admissibility.

In Principles of Evidence in Public International Law as Applied by Investor-State Tribunals, Kabir Duggal and Wendy Cai explore the fundamental principles of evidence and how these principles relate to burden of proof and standard of proof. By tracing the applications of major principles recognized by the International Court of Justice and applied by investor-state tribunal jurisprudence, the authors offer valuable insight into the interpretation, understanding, and nuances of indispensable principles of evidence, an area that has been ignored in both investor-state arbitration and public international law more generally.

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.