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Books > Law > International law > Settlement of international disputes > International arbitration
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Bias Challenges in International Arbitration - The Need for a 'Real Danger' Test (Hardcover, New)
Loot Price: R5,813
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Bias Challenges in International Arbitration - The Need for a 'Real Danger' Test (Hardcover, New)
Expected to ship within 10 - 15 working days
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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.
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