Introduction
A new form of dispute resolution international commercial arbitration became to maturity throughout the second half of twentieth century. The results of this history are of practical and theoretical significance for worldwide marketable relationships. This story starts early in the nineteenth century; the ending events happen in the decades since the end of World War II.[1] The suitability of the arbitral procedure to the resolution of international commercial disputes is not only showed by its landscapes and the rise of negotiation. The economic interests of the authorities are looking for to appeal arbitration may be an important factor in the evolution of many arbitration laws in the world. Several states have endorsed a pro-arbitration policy. The trend of globalisation and “one market” economy has witnessed significant cross-border transactions, including, inter alia, trade in goods and services, and flow of capital. With the increased commercial ties between private persons inter se and vis-à-vis the State, the complexity of commercial contracts has increased manifold.[2] Parties from countries across the globe are involved in transactions amidst diverse cultures, political instabilities, conflicting ideologies, varying organisational settings, inconsistent laws, and dynamic economic variables.[3] Needless to mention, such complexities trigger interpretative confusions and conflicts, and contractual breaches resulting in disputes.
While the World Trade Organisation offers a platform for dispute resolution in trade relations between States, there is no such international body in the private commercial space.[4] Over past decades, arbitration has become the accepted method for resolving international business disputes. This is evident in the exponential growth in the number of arbitration matters, arbitral centres and arbitrators since 1970s,[5] backed by legal developments at the global level with the UNCITRAL model law on international commercial arbitration (Model Law) [6] and the New York Convention,[7] being the most dominant ones.
Such popularity of international commercial arbitration can primarily be attributed to the perceived advantages of it over litigation in national courts, more particularly, being expeditious, less costs involved, less formal and technical, and the expertise of arbitrators, while also encompassing the merits of court decisions in the awards being binding, enforceable and having the required legal legitimacy/sanctity.[8] So, where does international commercial arbitration derive its legitimacy from?
Theories
There are predominantly three theories in relation to the sources of legitimacy of international commercial arbitration, namely (i) contractual theory, (ii) jurisdictional theory, and (iii) autonomous theory.[9] These competing theories create tension between the two extreme schools of thought- one, that argues arbitration emanates from private consensus of contracting parties; versus the other which believes that arbitration is governed by and subservient to national legal systems.
a. Contractual Theory
This identifies the underlying contract and related private autonomy as the basis for the existence, jurisdiction and powers of the arbitral tribunal. Thus, arbitration is governed by the mutual consent, intention and wishes of the parties as reflected in the arbitration agreement. As a corollary, a valid arbitration agreement between the parties becomes imperative and a prerequisite, which then determines every aspect of the arbitration, including, inter alia, the proceedings, the applicable law, the constitution of the tribunal, and its powers and jurisdiction.
Considering that an arbitration agreement between parties is paramount and represents the “foundation stone of international commercial arbitration”, it has been defined and its enforceability has been acknowledged by both the Model Law[10] and the New York Convention.[11] Accordingly, a valid arbitration agreement can be concluded as one which mirrors the necessary characteristics, namely- (a) it must be in writing, (b) deals with existing or future disputes, (c) arise in respect of a defined legal relationship (whether contractual or not), (d) concerns a matter capable of settlement through arbitration (arbitrability), (e) is made by parties having legal capacity, and (f) must be valid under law to which it is subject to.[12] Notably, all of the above features have emanated from the Model Law[13] and the New York Convention,[14] and evolved through case law.[15]
Thus, where there is no such meeting of minds between the parties to submit a dispute to arbitration by way of an agreement (in writing), courts have refused arbitration as a potential method to resolve disputes. For instance, in Kenon Engineering v Nippon,[16] where the contract provided for mediation (without any parallel mention of arbitration), the court ruled that there was no arbitration agreement between the parties so as to refer the dispute for arbitration.
The theory further asserts that arbitration ought to be guided by parties’ choice and autonomy free from any State interventions or rules of national legal systems. In other words, arbitration proceedings are ambulatory in nature, and not necessarily geographically placed. As its legitimacy rests solely on the parties’ agreement, notwithstanding that the enforcement of arbitral awards is sought within national courts, denial of such enforcement does not deprive the award of its legitimacy or worth.[17] It argues that “arbitration should be denationalised or unbound from the laws of the seat of arbitration” or those of the country where the award is enforced.[18] It is an entirely voluntary and consensual mechanism, and thus, anything inconsistent to such parties’ contractual expectations (from which it derives its legitimacy) is not tenable.[19]
b. Jurisdictional Theory
This envisages supervisory authority of the State to regulate any international commercial arbitration within its jurisdiction. It reckons such arbitration as a geographically localised alternate to litigation, which derives all of its authority and legitimacy from the State- the seat of arbitration.[20] In other words, international commercial arbitration emanates from the will of the sovereign State, which grants such consent only after having retained certain supervisory control over it, as evidenced through aspects like “judicial review” of arbitral awards (power of national courts to assess and set aside, if necessary, and award on grounds like public policy) and “arbitrability” (certain matters not capable by law of being subject to resolution through arbitration).[21]
It argues that arbitration arises not from the parties’ agreement per se, rather from the national legal system which attributes certain sanctity and consequences to such agreement. Thus, despite being called “international”, a private arbitration remains national in character and derives its legitimacy from the national system.[22] As appropriately summed up by Titigawa- “Arbitration is, more or less, liberation from the court jurisdiction and substantive law of the sovereign state. Each sovereign state is, however, by itself something like a microcosm and the ultimate regulator of social life within its own territory, at least, at the present stage of historical development. In any event, there is no society that is not subject to legal regulation. It is no wonder that each state has its own statutory or common law regulating arbitration proceedings”.[23]
c. Autonomous Theory
This advocates for a flexible mechanism warranted in the contemporary transnational business world. Driven by this objective, the theory suggests international commercial arbitration as one such method of dispute resolution that stands autonomous free from the clutches of national laws.[24] In that sense, it is more akin to the contractual theory discussed above, as it too argues for absolute party autonomy and freedom of choice as being the foundation of arbitration. This is clearly an idealistic approach with impetus on the role and objectives (rather than on the structure) of arbitration to cope up with the fast moving commercial space.[25]
Aside to the above, there are other varied theories and connotations advanced by different academicians and authors, to justify the legitimacy of international commercial arbitration. For instance, Cuniberti advocates for four different grounds of according legitimacy to international commercial arbitration, namely- (a) democratic legitimacy premised on the norm that power be only exercised with the consent of the governed- the parties’ choice in the arbitration agreement (akin to the contractual theory); (b) technocratic legitimacy founded on the purpose it is meant to serve, for example, the ability of the arbitrator to decide the dispute accurately in accordance with law; (c) procedural legitimacy- fairness of the process; and (d) participative legitimacy, in an example, the parties have a voice and involvement in constituting the tribunal and determining its powers- comparable to democratic legitimacy.[26]
Tension between International Commercial Arbitration and National Courts
A review of the above theories reveal extremist and idealistic positions, which are hard to attain in real life. The actual picture lies somewhere intermediate to the above approaches, where a mixture of these dilute the strict demarcations between parties’ agreement and autonomy vis-à-vis national legal systems.[27] Craig aptly compares this to an “ice berg” where a small mass above the surface represents the overlap of the two, for example, where arbitration is called upon by national courts on questions of public policy, arbitrability, jurisdiction, etc.; and the bigger mass below the surface denotes the majority of disputes resolved through self-contained mechanism premised on private agreement.[28]
On a similar note, Lord Mustill opined that the stress is created because, on one hand, the judge is seized by his duty to cure any injustice wherever placed (including arbitration), and on the other, it is alleged that it is wrong for the courts to indulge in disputes which the parties have voluntarily chosen to withdraw from them.[29] It is, thus, worthwhile to assess this inevitable tension between the private party autonomy and national courts, which is invoked more particularly by the party against whom the award lies. The conflict further intensifies in the context of ad hoc arbitration as compared to permanent institutional arbitration, as the effectiveness of the former depends completely on the cooperation between the parties which comes under pressure in times of disputes.[30] On the other hand, given the permanency of the institutions like International Chamber of Commerce, American Arbitration Association, the London Court of International Arbitration, Arbitration Institute of Stockholm Chamber of Commerce, International Commercial Arbitration Court, and the Singapore International Arbitration Centre, amongst others, they enjoy a greater degree of confidence in terms of authority and powers (mostly determined by their charter and rules).
As such, the friction is visible in what is popularly termed as “gateway” issues,[31] for instance, the threshold issues that a court, if challenged before it, will decide at the outset without going into the merits of the dispute reserved to be decided by the arbitral tribunal later. These include matters, inter alia, validity of the arbitration agreement; defective arbitration agreements alleged to be inconsistent, uncertain or inoperative; arbitrability of the matter (whether the dispute is capable of being subject to arbitration- mostly ascertained by the national law of the seat of arbitration); capacity of parties concerned; and scope of the arbitration agreement/jurisdiction over the dispute.[32] All of the above issues have been accepted as grounds for challenging the recognition, enforcement and/or appeal from an arbitral award under the Model Law,[33] the New York Convention,[34] and national laws such as section 103 of the UK Arbitration Act 1996.
The European Court of Justice (ECJ) has constantly clearly rejected in a continuously jurisprudence, especially since the Allianz SpA, and another v. West Tankers Inc. case rendered in 2009.[35] The English House of Lords to the Court of Justice on the issue of whether anti-suit injunctions allowed to influence to arbitration agreements are well-suited with the Brussels I Regulation (No 44/2001), in the wake of the Court’s decisions[36] in Gasser[37] and Turner[38]. On 13 May 2015, the CJEU has given judgment in Gazprom[39]. The case is about whether an EU court must decline to offer outcome to an anti-suit award decided by an EU placed arbitral tribunal on the foundation that such a factor is unsuited with EU the Brussels I Regulation and debated it reversed the West Tankers exclusion on intra-EU court anti-suit injunctions in maintenance of arbitration.[40] It is applicable to inspect the development of the previous jurisprudence. The ruckus can be traced back to as early as the Vinyor case,[41] where it was held that an arbitrator’s authority could be revoked in favour of judicial determination. The conflict continued, for instance in Dalmia Dairy Industries v Pakistan,[42] where it was alleged that arbitration agreement, although existed, was void on ground of illegality. Public policy provides an extensive ground for the courts to participate in matters submitted for arbitration, more so, as there is no definite and clear explanation offered to this term.[43] For instance, in Soleimany v Soleimany,[44] the court ruled that in public interest, “English court will not enforce a contract governed by English law, or to be performed in England which is illegal by English domestic law”- and which applies to enforcement of an arbitration too.
In the context of existence of a valid arbitration agreement, the court in Dallah Real Estate and Tourism Holding Co v The Ministry of Religious Affairs- Government of Pakistan,[45] declined enforcement on the ground of lack of it. The situation becomes all the more difficult where the party opposing arbitration alleges that there was no meeting of minds, as the offer was never accepted, and thus a contract was not formed.[46] For instance, in Gibson v Neighborhood Health Clinics,[47] a claim of lack of contract based on absence of consideration was held to be amenable to court intervention. The stance was replicated in Par-Knit Mills v Stockbridge Fabrics,[48] where a challenge that final consent to contract was not given so as to cease the existence of any arbitration agreement was brought to be determined by the court.
Finally, the most recent illustration of this tussle is the case of Malicorp Ltd v Government of the Arab Republic of Egypt,[49] where the court refused to enforce a Cairo Regional Centre for International Commercial Arbitration award, because (a) the award was set aside by a Cairo court, and (b) the award provided remedies which were not pleaded.
Having appraised the conflicting situations where international commercial arbitration found itself at loggerheads with national courts (English courts), a notable transformation in this approach has been observed more recently where the national courts have shown respect for the institution of international commercial arbitration, and thus, have been reluctant to intrude in matters of it.[50]
This can be traced to the 1942 decision in the case of Heyman v Darwins,[51] where the court introduced the concept of separability in the context of arbitration agreement, and held that an arbitration clause is not terminated by breach of the contract of which it forms a part. This was later reiterated in Lesotho Highlands v Impreglio SpA[52] that an arbitration agreement is distinct and separate from the underlying principal contract. This principle, thus, now constitutes a serious bar for a party who desires to delay or escape the arbitration agreement by questioning the existence or validity of it by questioning the main contract in court. It ensures that, if one party claims a total breach of contract, the arbitration clause is not impaired. Instead, “it survives for the purpose of measuring the claims arising out of such breach…the purposes of the contract have failed, but the arbitration clause is not one of the purposes of the contract”.[53] This reasoning also stands ratified by the UNCITRAL arbitration rules.[54]
Further, in Harbour Assurance Co (UK) Limited v Kansa General International Assurance Co Limited,[55] the reasoning behind such transformation was advanced describing arbitration as a one-stop adjudication process, for instance, to prevent the “inconvenience of having one issue resolved by the Court and then, contingently on the outcome of that decision, further issues decided by the arbitrator”.[56] This was followed by the landmark decision of Fiona Trusts v Privalov,[57] where the court ruled that a jurisdiction or arbitration provision in an international commercial agreement should be liberally construed. The case concerned challenges on the grounds of (a) whether the scope of arbitration agreement covered the contract alleged to be premised on bribery, and (b) the doctrine of separability of such agreement from the main contract. Such stance also found support in Premium Nafta Products v Fili Shipping Co.[58]
Other illustrations of the reconciled attitude are found, for instance, where an arbitration agreement is alleged to be inconsistent, courts attempt to give a meaning to it so as to uphold it, as evidenced in Central Meat Products v JV McDaniel.[59] Likewise, Star Shipping v China National Foreign Trade Transportation,[60] is an example where the court’s support to arbitration provision, unless it is so vague and lacks sense, was once again witnessed. Also, in Ashville Investments v Elmer Contractors,[61] the court held that an agreement providing for arbitration “in connection with” the contract was sufficient to vest the tribunal with the authority to rectify the contract so as to give it the true intended meaning. Similar stance was mirrored in Ethiopean Oil Seeds and Pulses Export v Rio Del Mar Foods in the context of an “arising out of” clause.[62]
More recently, upholding the principle that the entire purpose of international commercial arbitration is to promote fast solutions and enforcement, and that courts must facilitate it by not erecting hurdles, the court in Anthony Lombard-Knight v Rainstorm,[63] condemned the setting aside of an award on ground of public policy.
This transformation is further corroborated by the 1996 UK Departmental Advisory Committee on Arbitration Law Report- “Nowadays the Courts are much less inclined to intervene in the arbitral process than used to be the case…changing attitudes generally, have meant that the courts nowadays generally only intervene in order to support rather than displace the arbitral process”.[64]
Such transformation in favour of upholding the sanctity of international commercial arbitration is not exclusive to UK, as this journey has been experienced world over. Some of the prominent cases in this regard being the US’ Mitsubishi case,[65] in which antitrust matters were brought within the purview of “arbitrability”. Another US decision – Warnes SA v Harvic International,[66] reaffirms such deviation from the traditional approach so as to give effect to arbitration agreement wherever possible. This reform towards harmonising the friction of “court versus arbitration” finds solace in other countries too, such as Australia,[67] Hong Kong,[68] Malaysia,[69] and India.[70]
Investor-State Arbitration
Cross-border investments were, historically, governed by customary international law, more particularly, through diplomatic protection.[71] However, with advent of bilateral investment treaties (BITs), international investment law is now placed at a mid-path between contractual rules and international public law. The typical contents of BITs comprise of, inter alia, the dispute resolution provisions which enables a foreign investor to initiate arbitration against the host State in the event of any breach of such treaty commitments, without any requirement of exhaustion of local remedies in such country. Since the first BIT between Germany and Pakistan in 1959, BITs executed have grown exponentially in the past twenty years – from about 500 in 1990 to more than 3200 by 2013.[72] As a consequence, this has resulted in an increased number of investor-State disputes under the corresponding BITs, from just 14 disputes in 1987-98 to 568 reported until 2013.[73]
BITs provides for investor-State arbitration as the mechanism for dispute resolution, also called “investomercial” arbitration by Brower.[74] Needless to mention, the arbitration emanates from the arbitration clause, which may be generally worded- as in the Italy-UAEBIT- to arbitrate on any or all disputes arising out of or in connection with the investments;[75] or may be limited to only such claims which result from alleged violation of the substantive standards of the BIT.[76] Such agreement, akin to other private commercial arbitration, may provide for arbitration by way of (a) ad hoc arbitration, or (b) institutional investment arbitration. The most common forum for the latter kind is the International Centre for Settlement of Investment Disputes (ICSID), established under the ICSID Convention of 1965.[77]
Whether ad hoc or under ICSID, such investor-State arbitration has come under much criticism in relation to its sanctity and legitimacy. This is because, ICSID, similar to ad hoc arbitration tribunals, does not have any permanent sitting body.[78] A degree of permanency is desirable in relation to the arbitral body, as otherwise, with varying composition of tribunals from case to case, there is likelihood of the interpretations differing on same or equivalent claims.[79] This aspect has been condemned as a “peril” in the context of disputes in investment matters.[80]
Further, tribunal awards often confront challenges on when sought to be enforced in the host State.[81] For instance, the Singapore court recently ruled in favour of Laos when the jurisdiction of an arbitral tribunal under the China-Laos bilateral investment treaty was challenged before it.[82] Similarly, the arbitrability of the dispute before the tribunal was brought under question in the investor-State case of BG Group v Argentina.[83] In this case, while deciding whether to set aside an award against the host State where the investor had not resorted to litigation in the national courts before initiating arbitration, as was required under the BIT, the court assessed the issue of arbitrability of the dispute in the investment arbitration context. However, upholding the sanctity of the institution of investor-State arbitration, the court ruled that deciding on such arbitrability was essentially and presumptively a matter to be determined by the tribunal itself.
On another note, investor-State arbitration under BITs comes under the attack of host States at the very foundational level – such temporary tribunals in essence sit over policy matters and national interests of the country.[84] For instance, the case of Philip Morris Brand Sàrl (Switzerland), Philip Morris Products SA (Switzerland) and Abal Hermanos SA (Uruguay) v Oriental Republic of Uruguay involved Uruguay’s public health measures for tobacco control.[85] Likewise, the tribunal in Socie´te´ Ge´ne´rale de Surveillance v Philippines, is critiqued of having undervalued public oriented policies.[86] In response, a number of countries like Argentina are now seeking to annul their BITs and withdraw from ICSID, while others like US, Norway and South Africa have commenced massive review of their agreements.[87]
International Commercial Arbitration in Turkey
One of the dispute resolution techniques is arbitration that agreed with an arbitration agreement with independent third party. The parties should legalise the place of arbitration if the parties want to apply arbitration with explaining both legitimate and practical matters.[88] Arbitration proceeding is governed appropriately to the parties’ arrangement and related rules. So, in the 1990s in Turkey numerous legal improvements were put in place to the changes and arbitration develops improved well-known and common.[89] In 2001, Turkish Government forced international Arbitration law instead of making dependable arbitration setting in Turkey and create the country a better arbitration place.[90] The deficiency of global arbitration act was protecting Turkey separately from globalization of modern recent trade industry and in the harmonization of Turkish regulations with the western law world.[91] Turkish legal system has also approved an international arbitration act on the basis of Model. In 2001 the New Turkish International Arbitration Act (TIAA)[92] was accepted and ratified on the basis of the Model Law; therefore, it contains modern recent arbitration rules.[93] In Turkey, the use of the norm of freedom of contract means that parties are freely able to decide on the norms of processes to be used in arbitration measures, get through specially approving their specific identical process or by denoting to institutional norms.[94] For example, Article 1 of the TIAC shows that in which circumstances the TIAC will be applied. There are two circumstances; i) there must be a non-local thing and the place of arbitration necessity be in Turkey, ii) even the place of arbitration is not Turkey if the TIAA has been decided as a procedural act.[95] Moreover the legitimacy of the arbitration agreement is resolute pursuant to the rule that has been selected by the parties. But if the parties are unsuccessful, according to Article 4 and Article 15 (A) (1) (a) of the TIAC, Turkish law will be the rule leading to the arbitration agreement.[96] The rules that the parties are influenced likewise and that as a result of strategy which is given to gatherings to build their rights and obligations for parties to increase. If the parties don’t want to gather to decide on the rules of strategy, the only arbitrator or the arbitral tribunal behaviours the arbitration happening in agreement with the default guidelines of the Turkish Code on Civil Procedure (CCP) or the TIAC. But if in any case, endorsed by the parties, in both a national and international arbitration an arbitral award on the facts of the circumstance necessity chose to decide in one year from the date of either the arrangement of the arbitrator or publication of the minutes of the initially meeting of the arbitral tribunal.[97]
In Turkey, commercial arbitration is generally used national disputes less than litigation.[98] The reason is arbitration is seen as a low cost-effective process to decide national disagreements, but arbitration is usually resolve international disputes. The central lawful zones that usually use arbitration are construction law, maritime law, and commercial law.[99] The ratification of New York Convention 1958 was in 1991[100] so as a party of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), the Turkish courts’ enforcement of an arbitral award is possible to apply and approved in the place of a foreign participant states.[101] In nowadays, national courts are gradually aware with its disjunctive dispute resolution technique thus arbitration is commonly using and becoming more popular in international commercial disputes. The recognition and regulation of international arbitration in Turkey over the last 60 years[102] and the enforcement and recognition of arbitral awards are permitted if the applicable circumstances are suitable.[103] In addition to this, on 1 January 2015 the Law on the Istanbul Arbitration Centre went into power and built up an arbitration centre in Istanbul.[104] On the other hand, arbitral awards found in Turkey can be imposed in other signatory countries. In accordance with the reciprocity principle, with paragraph 3 of Article 1 of the New York Convention Turkey applies just for the acknowledgement and implementation of grant rendered in a signatory government. This must apply the New York Convention just to the contentions ascending from contractual or non-contractual legitimate relations and the contentions which are considered as business under its local law.[105]
There is a difference between requirements connecting to national and universal arbitration. Both arrangements of guidelines are mostly built on the UNCITRAL Model Law on International Commercial Arbitration 1985 UNCITRAL Model Arbitration Law. To clarify more, in the national arbitration between Article 407 and Article 444 of the Code on Civil Procedure[106] (CCP) comprises the requirements that relate to arguments which have both no external factor and decided Turkey as the place of arbitration. On the other hand in international arbitration only the particular code concerning to international arbitration proceedings is TIAA[107] which comprises the main requirements to be useful in arguments either with external factor where Turkey is the arranged place of arbitration or where the parties, arbitrator or arbitral tribunal have decided the TIAA will apply.[108]
As a conclusion with a geographical advantage as being the bridge between Asia and Europe, with several cultivated societies, and significantly, with a strong government provision Turkey is trying to be a financial centre and popular arbitration centre.[109] They are the essential advantages of the country to encourage the culture of arbitration. Lastly, this step will make the international arbitration its own way and it will becomes an ideal way of dispute resolution.
Conclusion
It is clear and established that international commercial arbitration cannot be sustained solely on the contractual or autonomy theory premised on private consensual agreement, nor can it exist based on the national legal systems alone. This is because while excessive judicial intervention may erode the very advantages of arbitration as an alternate dispute resolution mechanism, not having such supervision may result in tremendous abuse of the arbitration process.[110]
Thus, international commercial arbitration begins as a private agreement between the parties, and continues to be so during the proceedings (except where interim relief is pleaded for), and terminates with a legally binding award, which then seeks for the assistance of national courts for purposes of its recognition and enforcement. In other words, it encompasses a private process which, for its implementation, needs the support of public authorities. As enunciated by Jan Paulsson- “the great paradox of arbitration is that it seeks the co-operation of the very public authorities from which it wants to free itself”.[111]
Hence, a balance between the arbitral autonomy, party choice vis-à-vis intervention by national courts is critical. This calls for a hybrid theory which strives to balance the two competing forces, and thus, better justify the legitimacy of international commercial arbitration. This, however, would be difficult to attain as there is an inherent tension between the two- achieving the greatest independence from national systems so as to reap the benefits of speed, costs and efficiency versus retaining the faith and confidence in the arbitral process which is possible only through potential review process to challenge any arbitrariness or abuse of it.[112]
Some countries like France, however, have sought to strike this balance through laws which prevent court intervention in the gateway issues, and which are made subject to exclusive determination by the tribunal itself.[113] Thus, courts have been vested with restricted role in international commercial arbitration until the final award is rendered.[114] As for UK, judicial treatment of threshold issues in international commercial arbitration has undergone a significant reformation, with the traditional hostile conflict gradually making way for a harmonised sustenance of both, the arbitral autonomy and court supervision. The fine line of balance, however, is not definite or clear, and varies from case to case. Such uncertainties (specifically, those on account of the differing approaches of national courts across jurisdictions in the contemporary transnational globalised economy) are expected to linger in future. This is more so, given that an international regime for commercial arbitration (akin to the dispute resolution under the auspices of the World Trade Organisation) seems far-fetched.
On another note, the pedestal of international commercial arbitration is groped by many other serious concerns, with credentials and expertise of arbitrators, confidentiality, burden of proof, and permanency of tribunals, being the major ones.[115]
References
Books & Articles
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- A Reinisch & L Malintoppi, ‘Methods of Dispute Resolution’ in Muchlinski, Ortino, & Schreuer (eds), The Oxford Handbook of International Investment Law (Oxford University Press 2008) 694.
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Cases
- Allianz SpA and Generali Assicurazioni Generali SpA v. West Tankers Inc. [2009] C-185/07 ECR I-663
- Anthony Lombard-Knight v Rainstorm [2014] EWCA Civ 356.
- APC Logistics v CJ Nutracon [2007] FCA 136.
- Ashville Investments v Elmer Contractors (1997) 37 BLR 60.
- BG Group v Argentina 134 SCt 1198 (2014).
- Central Meat Products v JV McDaniel [1952] 1 Lloyd’s Rep 562.
- CME Czech Republic BV v Czech Republic (13 September 2001) 14 (3) World Trade and Arbitration Material 109.
- Comandate Marine v Pan Shipping (2006) 157 FCR 45.
- Compañía de Aguas del Aconquija SA and Vivendi Universal v Argentine Republic ICSID ARB/97/3 (21 November 2000).
- Dallah Real Estate and Tourism Holding Co v The Ministry of Religious Affairs- Government of Pakistan [2010] UKSC 46.
- Dalmia Dairy Industries v Pakistan [1978] 2 Lloyd’s Rep 223.
- Eco Swiss China Time v Benetton International Case C-126/97 (1999) XXIV Yearbook Commercial Arbitration 629.
- Ethiopean Oil Seeds and Pulses Export v Rio Del Mar Foods [1990] 1 QB 86.
- Fiona Trusts v Privalov [2007] 1 All ER 891.
- Erich Gasser GmbH v. MISAT Srl. [2003] ECR I-14693
- Gibson v Neighborhood Health Clinics 121 F.3d 1126 (7th Cir. 1997).
- Government of the Lao People’s Democratic Republic v Sanum Investments Ltd [2015] SGHC 15.
- Harbour Assurance Co (UK) Limited v Kansa General International Assurance Co Limited [1993] QB 703.
- Heyman v Darwins [1942] AC 356.
- Innotec Asia v Innotec GmbH [2007] 3 AMR 67.
- Joy Mining Machinery v Egypt ICSID Case No ARB/03/11, Decision on Jurisdiction 6 August 2004.
- Kenon Engineering v Nippon [2003] HKCFI 568.
- Lauder (Ronald) v Czech Republic (3 September 2001) 4 World Trade and Arbitration Materials 35.
- Lesotho Highlands v Impreglio SpA [2005] UKHL 43.
- Malicorp Ltd v Government of the Arab Republic of Egypt [2015] EWHC 361 (Comm).
- Mangistaumunaigoz Oil v United World Trade [1995] 1 Lloyd’s Rep 617.
- Mitsubishi Motors v Soler Chrysler 473 US 614, 105 SCt 3346 (1985).
- Opals on Ice Lingerie, Designs by Bernadette v Body Lines 320 F.3d 362, 372 (2d Cir. 2003).
- Pacific International Lines v Tsinlien Metals & Minerals [1992] HKFCI 225.
- Pacific International Lines v Tsinlien Metals and Minerals [1992] HKCFI 225.
- Par-Knit Mills v Stockbridge Fabrics 636 F.2d 51 (3d Cir. 1980).
- Philip Morris Brand Sàrl (Switzerland), Philip Morris Products SA (Switzerland) and Abal Hermanos SA (Uruguay) v Oriental Republic of Uruguay ICSID Case No ARB/10/7.
- Premium Nafta Products v Fili Shipping Co [2007] UKHL 40.
- Richardson v Mellish [1824-34] All ER 258.
- Socie´te´ Ge´ne´rale de Surveillance v Philippines ICSID Case No. ARB/02/6
- Société la Chartreuse c. Cavagna, Cour de cassation [Cass.] [supreme court for judicial matters] 2e civ, 18 December 2003, Bull civ II, No 393.
- Société Spa Tagliavini, Cour de cassation [Cass.] [supreme court for judicial matters] Com, 25 November 2008, Bull civ IV, No 197.
- Soleimany v Soleimany [1999] QB 785, 803.
- Star Shipping v China National Foreign Trade Transportation [1993] 2 Lloyd’s Rep 445 (CA).
- The Rena K [1979] QB 377.
- Turner v. Grovit, Harada Ltd and Changepoint SA. [2004] ECR I-3578
- Vinyor (1609) 77 Eng Rep 595.
- Warnes SA v Harvic International 92 Civ 5515 (RWS), 1993 US Dist LEXIS 8457 (SDNY 21 June 1993).
- Westacre Investments Inc v Jugoimport [2000] QB 288.
[1] Arthur Taylor von Mehren, International Commercial Arbitration: The Contribution of the French Jurisprudence Arthur Taylor von Mehren Volume 46 | Number Louisiana Law Review 5 May 1986 <http://digitalcommons.law.lsu.edu/lalrev/vol46/iss5/2> accessed 14th January 2016.
[2] R Rana & M Sanson, International Commercial Arbitration (Lawbook Co 2011).
[3] JW Salacuse, ‘ Mediation in International Business’ in J Bercovitch (ed), Studies in International Mediation (Palgrave Macmillan 2002) 213-227.
[4] I Carr, International Trade Law (Routledge 2013).
[5] Y Dezalay & BG Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (University of Chicago Press 1996).
[6] General Assembly Resolution 40/72 of 11 December 1985; read with A/RES/61/33 of 18 December 2006.
[7] The Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
[8] GA Bermann, ‘The “Gateway” Problem in International Commercial Arbitration’ (2012) 37(1) Yale Journal of International Law 1. See also, KP Berger, Private Dispute Resolution in International Business: Negotiation, Mediation, Arbitration (Kluwer Law International 2009).
[9] KL Lynch, The Forces of Economic Globalization: Challenges to the Regime of International Commercial Arbitration (Kluwer Law International 2003).
[10] Article 7.
[11] Article II.
[12] Rana & Sanson (n 1).
[13] Articles 7 and 34.
[14] Article II.
[15] Pacific International Lines v Tsinlien Metals and Minerals [1992] HKCFI 225. See also, APC Logistics v CJ Nutracon [2007] FCA 136.
[16] [2003] HKCFI 568.
[17] ATV Mehren, To what extent is international commercial arbitration autonomous? (Litec Droit 1982).
[18] KL Lynch (n 8) 67.
[19] WM Reisman, Systems of Control in International Adjudication and Arbitration: Breakdown and Repair (Duke University Press 1992).
[20] O Chukwumerije, Choice of Law in International Commercial Arbitration (Praeger 1994).
[21] Ibid.
[22] FA Mann, ‘Lex Facit Arbitrum’ in P Sanders (ed), International Arbitration: Liber Amicorum for Martin Domke (Martinus Nijhoff 1967)
[23] K Titigawa, ‘Contractual Autonomy in International Commercial Arbitration’ in P Sanders (ed), International Arbitration: Liber Amicorum for Martin Domke (Martinus Nijhoff 1967) 135.
[24] J Lew, Applicable Law in International Commercial Arbitration: A Study in Commercial Arbitration Awards (Oceana Publications 1978).
[25] Ibid.
[26] G Cuniberti, ‘Beyond Contract – The Case for Default Arbitration in International Commercial Disputes’ (2008) 32(2) Fordham Int’l LJ 417.
[27] Ibid.
[28] L Craig, ‘Some trends and developments in the Laws and Practice of International Commercial Arbitration’ (1995) 30 Texas Int’l LJ 1.
[29] OP Malhotra, The Law and Practice of Arbitration and Conciliation (LexisNexis 2002) Foreword.
[30] Article IV of the European Convention on International Commercial Arbitration 1961. See also, A Redfern & M Hunter, Law and Practice of International Commercial Arbitration (Sweet & Maxwell 2004).
[31] GA Bermann (n 7).
[32] Ibid. See also, AJ von den Berg, ‘Should the Setting Aside of the Arbitral Award be Abolished?’ (2014) ICSID Review 1.
[33] Article 34.
[34] Article V.
[35] C-185/07 Allianz SpA and Generali Assicurazioni Generali SpA v. West Tankers Inc. [2009] ECR I-663
[36] J Gaffneyon, ‘ECJ in West Tanker Shocker: London Anti-suit Injunctions Fall Foul of EC Law’ 12 February 2009.
[37] C-116/02 Erich Gasser GmbH v. MISAT Srl. [2003] ECR I-14693
[38] C-159/02 Turner v. Grovit, Harada Ltd and Changepoint SA. [2004] ECR I-3578
[39] C-536/13 Gazprom
[40] S Laceyon, ‘Are Anti-Suit Injunctions Back on the Menu? Part 2: The CJEU’s Decision in Gazprom’ 14 May 2015.
[41] (1609) 77 Eng Rep 595. See also, EG Lorenzen, ‘Commercial Arbitration — International and Interstate Aspects’ (1934) 43 Yale Law Journal 716.
[42] [1978] 2 Lloyd’s Rep 223.
[43] Richardson v Mellish [1824-34] All ER 258.
[44] [1999] QB 785, 803. See also, Westacre Investments Inc v Jugoimport [2000] QB 288.
[45] [2010] UKSC 46.
[46] Opals on Ice Lingerie, Designs by Bernadette v Body Lines 320 F.3d 362, 372 (2d Cir. 2003).
[47] 121 F.3d 1126 (7th Cir. 1997).
[48] 636 F.2d 51 (3d Cir. 1980).
[49] [2015] EWHC 361 (Comm).
[50] A Redfern & M Hunter (n 29).
[51] [1942] AC 356.
[52] [2005] UKHL 43.
[53] Heyman v Darwins (n 44) 374.
[54] Article 21.2.
[55] [1993] QB 703.
[56] Id, 724-5.
[57] [2007] 1 All ER 891.
[58] [2007] UKHL 40.
[59] [1952] 1 Lloyd’s Rep 562. See also, Mangistaumunaigoz Oil v United World Trade [1995] 1 Lloyd’s Rep 617.
[60] [1993] 2 Lloyd’s Rep 445 (CA). See also, The Rena K [1979] QB 377.
[61] (1997) 37 BLR 60.
[62] [1990] 1 QB 86.
[63] [2014] EWCA Civ 356.
[64] UK Departmental Advisory Committee on Arbitration Law, ‘1996 Report on the Arbitration Bill’ (1996) 280.
[65] Mitsubishi Motors v Soler Chrysler 473 US 614, 105 SCt 3346 (1985). See, contrary position in Eco Swiss China Time v Benetton International Case C-126/97 (1999) XXIV Yearbook Commercial Arbitration 629.
[66] 92 Civ 5515 (RWS), 1993 US Dist LEXIS 8457 (SDNY 21 June 1993).
[67] Comandate Marine v Pan Shipping (2006) 157 FCR 45.
[68] Pacific International Lines v Tsinlien Metals & Minerals [1992] HKFCI 225.
[69] Innotec Asia v Innotec GmbH [2007] 3 AMR 67.
[70] Arbitration and Conciliation (Amendment) Ordinance 2015 (21 October 2015).
[71] A Reinisch & L Malintoppi, ‘Methods of Dispute Resolution’ in Muchlinski, Ortino, & Schreuer (eds), The Oxford Handbook of International Investment Law (Oxford University Press 2008) 694.
[72] UNCTAD, ‘World Investment Report 2014’ (United Nations, 2014) < http://unctad.org/en/PublicationsLibrary/wir2014_en.pdf > accessed 14 November 2015.
[73] Ibid. See also, UNCTAD, ‘Recent Developments in Investor-State Dispute Settlement (ISDS)’, IIA Issues Note No.1 (May 2013), <http://unctad.org/en/PublicationsLibrary/webdiaepcb2013d3_en.pdf > accessed 10 November 2015.
[74] CN Brower, ‘Investomercial arbitration: Whence cometh it? What is it? Whither goeth it?’ (2014) 80(2) Arbitration 179.
[75] Compañía de Aguas del Aconquija SA and Vivendi Universal v Argentine Republic ICSID ARB/97/3 (21 November 2000).
[76] Egypt-United Kingdom BIT; Joy Mining Machinery v Egypt ICSID Case No ARB/03/11, Decision on Jurisdiction 6 August 2004.
[77] Convention on the Settlement of Investment Disputes between States and Nationals of Other States (14 October 1966) 4 ILM 532.
[78] Reed, Paulsson & Blackaby, Guide to ICSID Arbitration (Kluwer Law International 2011).
[79] CME Czech Republic BV v Czech Republic (13 September 2001) 14 (3) World Trade and Arbitration Material 109; and Lauder (Ronald) v Czech Republic (3 September 2001) 4 World Trade and Arbitration Materials 35.
[80] AV Aaken, ‘Perils of success? The case of international investment protection’ (2008) 9(1) EBOR 1.
[81] JW Salacuse & NP Sullivan, ‘Do BITs Really Work? An Evaluation of BITs and Their Grand Bargain’ (2005) 46 Harv Int’l LJ 67.
[82] Government of the Lao People’s Democratic Republic v Sanum Investments Ltd [2015] SGHC 15.
[83] 134 SCt 1198 (2014).
[84] P Wang, ‘When Investor-State Arbitration Tribunal Becomes Policy Maker: Reflection on Jurisdiction Decision of Philip Morris v. Uruguay’ SRIICL Working Paper Series 2013-7 < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296490&download=yes > accessed 10 November 2015.
[85] ICSID Case No ARB/10/7.
[86] ICSID Case No. ARB/02/6.
[87] P Muchlinski, ‘Trends in International Investment Agreements: Balancing Investor Rights and the Right to Regulate: The Issue of National Security’ in KP Sauvant (ed), Yearbook on International Investment Law and Policy 2008–2009 (Oxford University Press 2009) 37.
[88] A. Redfern, M. Hunter, Law and Practice of International Commercial Arbitration, (Sweet Maxwell, 4th Edition, 2004), p.22.
[89] CEYDA Surel, LLM, “Nearly a Decade on the Perception of International Arbitration Law by Turkish Courts,” Arbitration International, Volume 26, Number 3, 2010, p. 421.
[90] B Bulut, ‘The Role Of The Place Of Arbitration In International Commercial Arbitration Proceeding; Turkey As A Place Of Arbitration’ Ankara Bar Review 2011/, p. 35.
[91] Candaner Elver, Nazan, “Turkish International Arbitration Law and Restriction to its application”, Journal of International Arbitration, 21(5), 2004, page 453.
[92] International Arbitration Act No. 4686 of June 21, 2001. For more information A. Yesilirmak, The Turkish International Arbitration Law of 2001, Journal of International Arbitration 19(2): 171-177, 2002.
[93] Ibid n. 84.
[94] Article 424, Code on Civil Procedure (CCP) and Article 15, Turkish International Arbitration Code (TIAC)).
[95]B Bulut Ibid n. 84 p. 37.
[96] Similarly, Article 34 (2) (a) of the Model Law. A. Redfern, M. Hunter Ibid 82. p.124.
[97] Article 427, Code on Civil Procedure and Article 10/B, Turkish International Arbitration Code. And Ibid n. 84.
[98] Ibid n. 84.
[99]GE Dirican, E Atilla Pekin & Pekin, ‘Arbitration Procedures And Practice in Turkey: Overview’ Global Guides 2015/16 Arbitration, Thomson Reuters
[100] S Bezen, ‘Recent Development in İnternational Commercial Arbitration in Turkey’ Mealey’s International Arbitration Report Vol. 16, Mealey Publications March 2001, p. 2.
[101] Ibid n. 93.
[102] B Balkaya, ‘Enforcement of Foreign Arbitral Awards in Turkey’ Arbitration News Newsletter of the International Bar Association Legal Practice Division Vol. 15 No. 1 March 2010.
[103] For more information Ibid n. 93.
[104]Ibid and Law No. 6570 and Published in the Official Gazette dated 29 November 2014 and numbered 29190.
[105] Ibid 93.
[106] Law No. 6100 published in the Official Gazette dated 4 February 2011 and numbered 27836.
[107]Law No. 4686 published in the Official Gazette dated 5 July 2001 and numbered 24453.
[108] Ibid 93.
[109] Ibid.
[110] Y Dezalay & BG Garth (n 4).
[111] J Paulsson, ‘Arbitration in Three Dimensions’ (LSE Law, Society and Economy Working Papers 2/2010).
[112] KL Lynch (n 8).
[113] Société Spa Tagliavini, Cour de cassation [Cass.] [supreme court for judicial matters] Com, 25 November 2008, Bull. civ. IV, No 197.
[114] Société la Chartreuse c. Cavagna, Cour de cassation [Cass.] [supreme court for judicial matters] 2e civ, 18 December 2003, Bull. civ. II, No. 393.
[115] SD Franck, ‘Precision and Legitimacy in International Arbitration: Empirical Insights from ICCA’ (10 September 2014) < http://kluwerarbitrationblog.com/2014/09/10/precision-and-legitimacy-in-international-arbitration-empirical-insights-from-icca/ > accessed 10 November 2015.
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