International commercial arbitration: a comparative study of the London Court of International Arbitration and International Chamber of Commerce.
Introduction
Arbitration as a dispute resolution method is used in international relations between states and governed by the rules of Public International Law. My concern in this essay is the Arbitration in International Commercial Contracts governed by the Private Law between individuals or entities dealing in commercial matters. However, I will limit myself to one aspect of arbitration, mainly the institutions rules that govern the arbitration procedures namely the institutional arbitration.
Chapter 1 Arbitration
In this first chapter, I will deal with arbitration in general and international commercial arbitration, starting with its definition and how it was in the past and its advantages and disadvantages considering the two types of arbitration. Additionally I will review some of the major conventions related to this dispute resolution process such as the 1958 New York Convention, and other conventions related to arbitration. It is interesting to know how the arbitration was developed; so that, we can comprehend the significance of arbitration and its current rules.
1.1 Definition
Defining Arbitration is hard, as several writers have proposed various definitions. I will start exploring definitions of other writers, and concluding with my personal definition.
It is important to emphasize that the third party who is deciding the dispute must be neutral. This is what Edward Brunet et al (2006) emphasize in their longer definition of arbitration.
David defines arbitration as “Device whereby the settlement of a question, which is of interest for two or more perso...
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...n always seemed more attractive when the state had no institution in place to adequately settle disputes that arose in society. This is the case today when it comes to international commercial disputes. The judicial power of most countries does not meet the minimum standards to efficiently solve international trade related disputes. This is another good reason why international arbitration has been increasing. In sum, arbitration already has a very important presence in today’s society, and all the trends point to a bigger presence in the future.
Chapter 2 London Court of International Arbitration
The LCIA is the oldest arbitration institution having been established in 1893. It was then known as the London chamber of arbitration. It was restructured in the early 1980s and has since developed an annual case load in excess of 80 new arbitration.
The law is seen in two ways; as being fair, neutral and having an unbiased arbitrator,
It deals with perceptions of overall fairness (Blancero, Delcampo & Marron, 2010). Under Civil Procedure Rules, it is generally expected that the parties consider using ADR before beginning deciding on litigation (Ward, 2007). Overall, ADR parties have the freedom to choose who will decide the case, involves a non-hostile environment and disputes are confidential. Whereas, litigation does not have the option to decide who hears the case, the environment can be hostile and the files become public record, although it does offer due process (Benkin, 1994). There are three commonly accepted forms of ADR, negotiation, mediation and arbitration. Although, no method of ADR is equally exclusive to any issue, the benefits of ADR outweigh the
Drumbl, M. B. (2007). International Decisions. American Society of International Law , 101 (4), 841-848.
Macintyre, S. (1987), Holt and the Establishment of Arbitration: An Australian Perspective, New Zealand Journal of Industrial Relations, 12(3): 151-159.
Instructively, it behooves to set the premise on the background of the industrial relation system in the within the territorial jurisdiction of the Federation of Australia. Pursuant to section 51 under the Australian Constitution, the Federal Government has the powers to legislate with regard to conciliation as well as arbitration with a view to prevent and settle industrial disputes that step out of the confines of any given state (Fleming, 2004). Previously, the Conciliation and Arbitration Act of1904 had been the relevant Act in this respect, and it provided for the existence of trade unions and instituted the Commonwealth Conciliation and Arbitration Act Court (Fleming, 2004). The commonwealth Court lost powers to the Commonwealth Conciliation and Arbitration Commission in 1956; subsequently, it was renamed to the Australian Industrial Relations Commission (AIRC) which serves to resolve dis...
In any kind of legal relations, subject always play an important role, and it is one of the signals to determine the relation that pertaining the adjustment of any legislation system. International law is a legislation system that is a set of thousands of documents from various sources. The research about the subjects is necessary since it helps to find out the source of law, which relation pertains the adjustment of law. The subjects of international law include sovereign states and analogous entities, intergovernmental organizations, the individuals, and multinational corporations.
Although ADR is an appealing alternative to litigation today, throughout the early history of the United States, courts expressed much hostility toward the idea of enforcing an agreement through any alternative dispute resolution. Throughout the 1900’s, United States courts were reluctant to enforce any agreement to arbitrate an existing or future dispute unless a specific statute...
Arbitration is a form of dispute resolution where a binding decision is issued by a neutral person usually selected by the parties involved. Arbitration has some advantages over litigation and can be more efficient, less time-consuming, and more cost-effective. These are some of the primary reasons why businesses may choose to include arbitration clauses in their agreements. Arbitration is different from other types of dispute resolutions as the arbitrator is selected by the parties. Unlike mediation and conciliation the arbitrator not only resolves the dispute but also makes a binding decision. Arbitration disputes usually arise from a variety of business deals such as merger and acquisition, financial services, construction and infrastructure,
ADR holds an extensive, easily influenced and diverging choice of processes for finding solutions to disputes which are personified by structured negotiation and consensus. It is regarded that arbitration is a familiar ADR technique, however, it is more of an official adjudicative and adversary technique initially a confidential litigation process which has more commonality to litigation than the more original consensual processes which symbolise ADR. As simplified by Angyal (Alternative Dispute Resolution, 1987, p. 11). "The key difference between ADR and those traditional techniques of litigation and arbitration is that ADR techniques are used to produce a resolution to dispute through a negotiated agreement while litigation and arbitration are processes by which a result is imposed on the parties. " We can say that many issues arise with terms.
An arbitrator’s function is usually to interpret the collective bargaining agreement between the parties, not to apply his or her standards of what is right in a given situation. The courts have sought to compel labour and management to a peaceful resolution of grievances through arbitration. The Supreme Court has given support to the arbitration process in a series of decisions, and judicial deferral to arbitration has become a basic tenet of national labour policy. Bibliography Byars, L. L. (1997). The.
This decision is called an award. When an arbitrator is appointed to arbitrate over the dispute, he will ask the parties to retell their sides of the dispute.
Gies, T. P., & Bagley, A. W. (2013). Mandatory arbitration of employment disputes: What's new and what's next?. Employee Relations Law Journal, 39(3), 22-33.
Public International law International law contains of rules and principles, which preside over the relations and communication of nations with each other. International Law that is in most other countries referred to as Public International Law concerns itself only with questions of rights among more than a few nations or nations and the citizens or subjects of other nations. In dissimilarity, Private International Law deals with controversies among confidential persons, natural or juridical, arising out of situations having important association to further than one nation. In current years the line up connecting public and private international law have became more and more doubtful. Issues of private international law may also associate issues of public international law and numerous matters of private international law nave considerable meaning for the international group of people of nations. International Law consists of the basic, classic concepts of law in nationwide legal systems, status, property, responsibility, and tort. It also includes substantive law, procedure, process and remedies. International Law is rooted in receipt by the nation states, which comprise the system. Customary law and conventional law are primary sources of international law. Customary international law results when states trail convinced practices usually and time after time out of an intelligence of legal responsibility. Lately the customary law was codified in the Vienna Convention on the Law of Treaties. Conventional international law derives from international agreements and may obtain any appearance that the constricting parties have the same opinion upon. Agreements may be complete in admiration to any substance except for to the leve...
The international law is the fundamental basis of sovereignty and equality of all states. It promotes peace, order, and justice to the international society. The effectiveness of the international law is also anchored to the international community whether they will follow or not. It is important that international community has rules and obligation to follow in order to prevent chaos in the society. The development of international law led to the understanding of different policies and sanctions for the states. It deals with conflict of the states to relieve destructive conflict. The international law is agreed upon by the international community but there is no enforcing body unlike in the domestic law. State has been relying to treaties and international agreements for the prevention of war.
We have also explained the advantages of this method to resolve disputes that characterized the speed in resolving the conflict and justice. Confidentiality and trust between adversaries based this a special system to settle the disputes in accordance with the privacy of international commercial and its requirements. The defects, which are attributed to the arbitration is no longer only general observations and cannot withstand what has characterized international commercial arbitration of a prominent place and satisfaction of the international community to make it the basis for attracting foreign investment and the promotion of economic reality, particularly in the important areas. Despite the criticism of the arbitration is as a means of settling international commercial disputes, as indicated previously, the practice shows clearly on the rise in turnout in the International Con...