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.

International claims commissions have, over the last few decades, established themselves as important and permanent fixtures in international adjudication. This book provides a comprehensive review and analysis of the workings and mechanics of claims commissions to assess their success and predict their utility in the future. The book examines the legal framework of an international claims commission and the basic elements its processing procedure, as well as exploring the difficulties and challenges associated with operating costs, remedies and compliance with judgments. International claims commissions are created ad hoc to consider large numbers of complex legal claims resulting from an international upheaval, making them important international dispute resolution mechanisms. By focusing in large part on the examples set by the United Nations Claims Commissions, the Iran US Claims Tribunal, and the Eritrea Ethiopia Claims Commission, the authors assess the reasons to establish a claims commission by discussing their legal and operating structures, issues related to evidence and costs and the challenges and successes of creating them. The book concludes with a detailed analysis of lessons learnt to guide policy makers in the creation of future claims commissions. Written by two academics and a former practitioner this book is a practical resource for international law academics; counsel and judges in international courts and tribunals; policy makers in international organizations and foreign ministries, and diplomats.

Private international actors go to arbitration to avoid adjudicatory risks, especially the risk of bias. It follows that safeguarding procedural fairness is a key concern in arbitral processes, and that exposing actual bias is crucial. However, evidence from both case law and institutional statistics shows that wily parties are willing to abuse procedural fairness and cry bias as a way of delaying proceedings and escaping enforcement, and that the frequency of such spurious challenges is increasing. This insightful book offers a proposal, solidly grounded in legal principle and precedent, for how the arbitration community should respond to this threat. The author shows how 'dirty' challenge tactics are made viable primarily by the prevalence of a judicially derived test for bias which focuses on appearances, rather than facts. He argues that the most commonly used test of bias, the 'reasonable apprehension' test, makes it easy to allege a lack of impartiality and independence. He shows that the 'real danger' test, derived from the decision of the House of Lords in Gough, has a much higher threshold, and has the additional advantage of making the arbitral award stronger at the all-important enforcement stage. In the course of the presentation the book analyzes, in extraordinary depth, such issues as the following: - which state's courts are most likely to find arbitrator bias, and which state's courts are least likely; - applying the 'real danger' test under the various applicable conventions, the Model Law, and institutional rules; - bias challenges under European Human Rights law; - distinction between party-appointed arbitrators and chairmen in the context of a bias test; - relevant trends in investor-state and ICSID arbitration; and - bias rules in the lex mercatoria. In a broad comparative survey of the law of bias challenges in international commercial arbitration covering all leading states, the author examines various municipal laws to determine their tolerance for a 'real danger' clause in commercial contracts. His analysis, replete with case summaries and material facts, provides a strong scaffolding for his thesis, and also probes the causes of the increased rate of bias challenge. The need for a uniform test in this area is made very convincing by this original study. Arbitrators and other interested professionals and academics will find it of unusual value and interest, and corporate counsel will find much to consider in the use of the 'real danger' clause.

Increasingly, and to a greater degree than most national jurisdictions, France encourages and favours private arbitration as the normal and usual method for the resolution of disputes arising from international economic relations. In this new edition of the standard English-language work on French arbitration law and practice, the authors examine this trend as rules and practices developed in international arbitration have taken hold in French domestic arbitration and vice versa. Accordingly, the authors present the French arbitral process as one entire system of dispute resolution, which consists of various stages from the formation of the arbitration agreement to enforcement of the award, without dividing the subject into the formally distinct parts of domestic and international arbitration. The new edition highlights such features of this dynamic body of arbitration law as the following: - characterization of international arbitration by French courts; - cases which require decisions by a national court or authority; - cases where inarbitrability arises from protection of the weaker party to a contract; - cases where the decision sought would infringe a general rule of public policy; - authority and duties of the arbitral tribunal; - rights, obligations and liabilities of arbitrators; - the time factor in the conduct of arbitral proceedings; - tender and reception of evidence; - prescribed substantive rules of law; - the immediate effect and consequences of the arbitral award; - enforcement of the award in France (exequatur); - contesting orders of the juge de l'exequatur; - grounds common to annulment of awards; and - enforceability of awards pending challenge. At each stage the authors emphasize variations arising in international arbitration. The presentation also takes account, with comments at relevant points, of the influential 2006 Draft Reform of the Comite Francais de l'Arbitrage, which proposes to write into the Code de Procedure civile some of the arbitration-related matters which have been the subject of national court decisions. A highly useful annex reprints relevant French legislation, as well as the texts of major international arbitration conventions and an extensive bibliography. The objective of the book is to present a modern and efficient arbitration system, not only to readers who are encountering it for the first time, but also to those who, although well-versed in it, might benefit from a text in English, with the comparisons to common law provisions such an undertaking entails. Any practitioner or academic interested in the field of international arbitration and the enforcement of foreign awards will welcome this very useful and informative work.

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)

Recent years have seen an explosive increase in investor-state disputes resolved in international arbitration. This is significant not only in terms of the number of disputes that have arisen and the number of states that have been involved, but also in terms of the novel types of dispute that have emerged. Traditionally, investor-state disputes resulted from straightforward incidences of nationalisation or breach of contract. In contrast, modern disputes frequently revolve around government measures taken to further public policy goals, such as the protection of the environment. This book explores the outcomes of several investor-state disputes over environmental policy. In addition to examining the pleadings of parties and decisions of arbitral tribunals in disputes that have been resolved in arbitration, the influence that investment arbitration has had in negotiated outcomes to conflicts is also explored.

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 groundbreaking research review analyses leading work at the intersection of private international law and arbitration. Written by two recognised experts in the field, it covers wide range of topics, from international arbitration agreements and choice of law to the enforcement of awards and arbitration involving states. This authoritative study provides an essential research resource for students, academics and practitioners alike.

Seated in The Hague (Netherlands), the International Court of Justice is the highest court in the world and the only one with both general and universal jurisdiction. This sixth edition of The International Court of Justice Handbook aims to provide, without excessive detail, the basis for a better practical understanding of the facts concerning the history, composition, jurisdiction, procedure and decisions of the Court. In no way does it commit the Court, nor does it provide any interpretation of the Court's decisions, the actual texts of which alone are authoritative. The information contained in this handbook was last updated on 31 December 2013

Nowhere in the world has the process of investment treaty arbitration been more volatile or unpredictable than in Latin America. Although the rush of bilateral investment treaties (BITs) entered into by Latin American countries during the 1990s seemed to promise stable guarantees and security for investors, recent years have produced an ever increasing number of arbitrations before international tribunals involving claims by foreign investors amounting to millions and even billions of dollars. In many cases, the disputes have arisen from regulatory measures involving matters of public interest, including the general welfare, health, environment, security, or economy. In five deeply informative and challenging essays by well-known authorities in various aspects of Latin American and/or international investment legal practice, this book investigates the issues affecting arbitration of disputes invoking Latin American BITs. In-depth coverage includes the following:A { emerging controversies and conflicts, as well as the serious academic debates regarding varying interpretations of treaty terms by different arbitral tribunals; A { ICSID cases concluded to date against Latin American States and cases that have been dismissed on jurisdictional grounds; A { detailed analysis of non-precluded measures provisions, the state of necessity defence, and State liability for investor harms in exceptional circumstances (particularly in connection with water rights); A { a guide for government officials managing investment treaty obligations and investor-State disputes; A { procedural and substantive issues that States should consider in connection with their investment obligations and the handling of claims; andA { options available to address investment treaty provisions that States find troubling and the utility and effectiveness of the recommendations presented.The book demonstrates that there is a compelling need for States to develop greater awareness of their investment treaty obligations with a view to both diminishing the likelihood of claims and properly managing those that are submitted to arbitration. It describes the stocktaking process that should form part of any State A|s efforts to manage its investment treaty obligations and claims by investors that the State has breached those obligations. With specific recommendations for the effective administration of State obligations and investor-State disputes, the book offers eminently practical utility in addition to its penetrating theoretical analysis, and as such constitutes an enormously valuable resource for all parties concerned in Latin American investment.

This book provides the first comprehensive analysis of the Panama Convention, its implementation legislation in the United States, and United States court decisions construing its provisions. By comparing the Panama and New York Conventions, it identifies important differences, such as the Panama Convention's mandatory application of the Rules of Procedure of the IACAC to ad hoc arbitrations and differences in the Conventions' provisions concerning the grounds for recognition and enforcement of arbitral awards. By comparing Chapter 3 of the Federal Arbitration Act with the other provisions of the federal act, this book exposes problems in the implementing law as well as ways in which Chapter 3 improves on the federal law implementing the New York Convention. Through a critical review of Convention jurisprudence in the United States, it highlights at last three areas in which the courts need to do a much better job: the Convention's field of application, application of the IACAC Rules, and differentiation between the New York and Panama Conventions.

This new work provides a timely and in-depth examination of the interface between the recast Brussels I Regulation and international commercial arbitration. The nature of the exclusion of arbitration from the original Brussels I Regulation on the recognition and enforcement of judgments, and subsequent decisions of the CJEU in cases such as West Tankers, resulted in the use of delaying tactics by parties wishing to avoid arbitration agreements. The recast Brussels I Regulation sought to remedy the situation by clarifying the extent of the arbitration exclusion and providing further detail on the relationship between arbitration and the Regulation, with the aim of promoting the efficient resolution of international disputes within the European Union. While the recast Brussels I Regulation has gone some way to remedy the situation, problems remain for those engaged in international disputes in EU member states. Key features of this book include: Comprehensive analysis of the interface between the recast Brussels I Regulation and international commercial arbitration Examination of the dilatory tactics which may be employed to avoid arbitration such as forum shopping, commencing parallel proceedings and obtaining conflicting decisions Guidance on how these tactics are addressed in national and international law Assessment of the EU, international and national laws that apply to these tactics. Practitioners working within the fields of international commercial arbitration, civil litigation and private international law will find this work a valuable resource, providing a unique and detailed treatment of this important and technical subject.

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.

Increased economic interdependencies and trade flows between states, innovations in information technology and computer networks, a global shift toward market economies and regional and multilateral trade arrangements, have all led to an increasingly globalized world economy. This book seeks to analyze the inner penetration of a form of world polity or transnational order - comprised of part epistemic community, institutional networks, national laws and multilateral conventions, norms, rules, principles and transnational ideology - on the traditional notion of state sovereignty within the international arbitral regime. The title will interest practitioners and academics with an interest in international commercial arbitration.

ADR is not merely a substitute for court proceedings or arbitration, but a method of dispute settlement in its own right. In ADR proceedings, the parties call upon a third party not for a decision, but for assistance in reaching an agreement. As a result, ADR is not only less expensive and usually quicker than other methods, but it is capable of giving both parties some degree of satisfaction. The purpose of this book is precisely to look at ADR on its own terms as a way of resolving business disputes, particularly at the international level. Drawing upon diverse approaches, ADR experts from a variety of countries explore the situations to which ADR lends itself and the different permutations it offers to allow each dispute to be handled in the manner most fitting to the circumstances. The contributors also show how ADR serves such important considerations as the interests involved, the need to avoid a public display of differences, and the wish to anticipate problems. By throwing new light on the achievements of ADR and the possibilities it offers, this book will help to situate ADR amongst the panoply of dispute resolution methods now available to the international business community. Practitioners faced with drafting a dispute resolution clause in a contract, or dealing with a dispute which has arisen, will find expert guidance here when deciding which method of resolution to adopt, or whether a combination of procedures would be appropriate. Academics will discover a very useful volume which not only deals with many of the issues raised by ADR, in particular its relationship with arbitration, but also provides material for comparative study of how these issues have been approached and treated until now in various regions of the world, cultures and backgrounds.

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.

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 it has been ranked the fourth largest destination for foreign direct investment (FDI) in the world, Brazil has not enacted specific legislation to promote or protect FDI. Nor are there any investment treaties in force, so Brazilian companies investing abroad act without international legal protection. Considering the country's widely acclaimed "arrival" into the small family of the world's major trading nations, the question of Brazil's entry in the international FDI system - not only as an incentive to the inflow of foreign investment, but also to protect the investments of its national companies abroad - has become a hotly debated issue. This timely book, with its incisive reports on all important aspects of the matter, tackle this subject with prodigious knowledge and insight. With detailed analysis of investment-related legislation, including different legal and regulatory models, as well the examination of peculiarities of highly specialized industries present in Brazil, the authors cover such aspects as the following: investment in infrastructure, social areas such as education and health, commodities, and the oil and gas sector; to what extent expropriation under Brazilian law resembles the international standard of protection; political implications of Brazil's FDI stance with regard to the balance of interest within the Latin American region; foreign investment in light of the principle of national treatment; enforceability of arbitration agreements vis-a-vis the state, state entities, and state-owned companies; conflicts of jurisdiction between state courts and arbitral tribunals; arbitration involving companies in liquidation and reorganization proceedings; public - partnership contracts; and investment-related aspects of human rights and intellectual property rights.

The Court of Justice of the European Union has exclusive jurisdiction over European Union law and holds a broad interpretation of these powers. This, however, may come into conflict with the jurisdiction of other international courts and tribunals, especially in the context of so-called mixed agreements. While the CJEU considers these 'integral parts' of EU law, other international courts will also have jurisdiction in such cases. This book explores the conundrum of shared jurisdiction, analysing the international legal framework for the resolution of such conflicts, and provides a critical and comprehensive analysis of the CJEU's far-reaching jurisdiction, suggesting solutions to this dilemma. The book also addresses the special relationship between the CJEU and the European Court of Human Rights. The unique interaction between these two bodies raises fundamental substantive concerns about overlaps of jurisdiction and interpretation in the courts. Conflicts of interpretation manage largely to be avoided by frequent cross-referencing, which also allows for much cross-fertilization in the development of European human rights law. The link between these two courts is the subject of the final section of the book.

Peace and Justice at the International Criminal Court focuses on the evolution and the present-day work of the International Criminal Court, a historic global institution. Errol P. Mendes provides a compelling argument that there can never be a sustainable peace in conflicts unless the cause of justice is also addressed. The author dives deep into the facts and rulings of the Court that involved some of the most serious international conflicts in recent times. The author also discusses the challenges facing the Court from failed prosecutions to failures of the UN Security Council and other member states. What results is a detailed but honest critique of where the Court succeeds and where it needs to improve. Mendes goes on to provide a prediction of the greatest challenges facing the Court in the foreseeable future. This book is a valuable resource for academics and students in international criminal law and practice, public international relations, political science, military and war studies.

The Charter of the United Nations was signed in 1945 by 51 countries representing all continents, paving the way for the creation of the United Nations on 24 October 1945. The Statute of the International Court of Justice forms part of the Charter. The aim of the Charter is to save humanity from war; to reaffirm human rights and the dignity and worth of the human person; to proclaim the equal rights of men and women and of nations large and small; and to promote the prosperity of all humankind. The Charter is the foundation of international peace and security.

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.

This book examines Israel's relationship and political decision-making process towards the Occupied Territories from the aftermath of the Six Day War to the Labour Party's electoral defeat in 1977. The period represents the first decade of Israel's occupation of the Occupied Territories and the last decade in which the Labour Party was Israel's most dominant political force. Arguing that the successive Israeli governments headed by the Labour Party lacked a strategic policy towards the Occupied Territories to address the country's objectives and needs, this book demonstrates the detrimental effect this had on Israel, on the Middle East in general, and on the Palestinian people in particular. In addressing key aspects of decision making pathologies, this book raises issues which remain important features of Israeli politics today and an analysis relevant for political decision making worldwide.

At a time when human rights are coming under increasing pressure, in-depth knowledge and understanding of their foundations, conceptual underpinnings and current practice remain crucial. The second edition of Walter Kalin and Joerg Kunzli's authoritative book provides a concise but comprehensive legal analysis of international human rights protection at the global and regional levels. It shows that human rights are real rights creating legal entitlements for those who are protected by them and imposing legal obligations on those bound by them. Based, in particular, on a wide-ranging analysis of international case-law, the book focuses on the sources and scope of application of human rights and a discussion of their substantive guarantees. Further chapters describe the different mechanisms to monitor the implementation of human rights obligations, ranging from the regional human rights courts in Africa, the Americas and Europe and the UN treaty bodies to the international criminal tribunals, the International Court of Justice and the UN Security Council. The book is based on an understanding of human rights as legal concepts that address basic human needs and vulnerabilities, and highlights the indivisibility of civil and political rights on the one and economic, social and cultural rights on the other hand. It also highlights the convergence of international human rights and international humanitarian law and the interlinkages with international criminal law as well as general international law, in particular the law of state responsibility.