دانلود کتاب Jurisdiction, Admissibility and Choice of Law in International Arbitration: Liber Amicorum Michael Pryles

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Cover
Half Title Page
Title Page
Copyright Page
Editors
Contributors
Summary of Contents
Table of Contents
Preface
CHAPTER 1 The Law Governing Res Judicata in International Commercial Arbitration
§1.01 INTRODUCTION
§1.02 BACKGROUND: THE DOCTRINE OF RES JUDICATA AND INTERNATIONAL COMMERCIAL ARBITRATION
[A] The Doctrine of Res Judicata
[B] Res Judicata and International Commercial Arbitration
§1.03 THE LAW GOVERNING RES JUDICATA IN INTERNATIONAL COMMERCIAL ARBITRATION
[A] The Choice-of-Law Approach
[1] Law of the Place Where a New Claim Is Brought
[2] Law of the Place Where a Prior Award Was Made
[3] Law of Some Other State
[4] Critique of the Choice-of-Law Approach
[B] International Approach
[1] Rationale for Adopting International Standards
[2] Sources of International Standards
[a] Public International Law Jurisprudence
[b] The New York Convention
[c] ILA Recommendations on Res Judicata and Arbitration
[3] Critique of the International Approach
§1.04 CONCLUSION
CHAPTER 2 Assignments ‘Mid-Arbitration’: Some Practical Considerations
§2.01 INTRODUCTION
§2.02 WHICH LAW APPLIES TO WHAT?
§2.03 DETERMINING THE LAW APPLICABLE TO THE ‘TRANSFER’: THE IMPORTANCE OF QUALIFICATION
§2.04 THE REQUIREMENT TO GIVE NOTICE OF AN ASSIGNMENT MID-ARBITRATION
§2.05 CONSENT AS A PROPOSED REQUIREMENT FOR AN ASSIGNMENT MID-ARBITRATION
§2.06 CONCLUSION
CHAPTER 3 Exploring the Interpretative and Jurisdictional Consequences of Including an Investment Chapter in a Free Trade Agreement
§3.01 INTRODUCTION
§3.02 AN OVERVIEW OF THE INVESTMENT CHAPTER AND ITS PLACE IN THE FTA
[A] The Substantive Obligations
[B] Chapter-Specific Qualifications of Substantive Obligations and Textual Directives to Tribunals
[C] Extra-Chapter Eleven Qualifications of Substantive Obligations and Textual Directives to Tribunals
§3.03 INTERPRETATIVE ASPECTS AND MECHANISMS OF CHAPTER ELEVEN
[A] A Limited Jurisdictional Mandate Combined with the Duty to Apply the Agreement and ‘The Applicable Rules of International Law’
[B] The NAFTA Parties’ Reservation of Rights to Provide Interpretative Guidance to Tribunals
[1] Interventions of Non-disputing NAFTA Parties
[2] Binding Interpretations
§3.04 TRIBUNAL ENCOUNTERS WITH JURISDICTIONAL LIMITS
[A] Limitations on Tribunal’s Subject-Matter Jurisdiction?
[B] Tribunal Encounters with Unexpressed Territorial Limitations
§3.05 CONCLUSION
CHAPTER 4 The Temptation of Domesticity: An Evolving Challenge in Arbitration
§4.01 INTRODUCTION
§4.02 THE INTERNATIONAL PROVENANCE OF NATIONAL ARBITRATION LEGISLATION
§4.03 ENFORCING AND CHALLENGING AWARDS
[A] The Cameron Case
[B] The Sauber Case
§4.04 SUPPORTING ARBITRAL PROCESSES
[A] Stay and Referral to Arbitration
[B] Subpoenas
§4.05 THE GUTNICK CASE
[A] Residual Discretion to Enforce
[B] Stay of Enforcement Judgment
§4.06 CONCLUSION
CHAPTER 5 Interaction of Laws in International Arbitration: An Asian Perspective
§5.01 INTRODUCTION
§5.02 INTERACTION OF LEGAL ISSUES RELATING TO THE AGREEMENT TO ARBITRATE
§5.03 THE CONFLICT OF LAW METHOD TO DETERMINING THE LAW GOVERNING THE ARBITRATION AGREEMENT IN THE ABSENCE OF CHOICE
§5.04 THE LAW GOVERNING THE ARBITRATION AGREEMENT IN THEABSENCE OF CHOICE OF LAW: SURVEY OF ASIAN JURISDICTIONS
[A] Malaysia
[B] Singapore
[C] Hong Kong
[D] India
§5.05 THE PRESUMPTION OF SEPARABILITY
§5.06 PRACTICAL IMPLICATIONS ON DRAFTING ARBITRATION AGREEMENTS AND FUTURE DIRECTIONS
§5.07 CONCLUSION
CHAPTER 6 Balancing Party Autonomy, Jurisdiction and the Integrity of Arbitration: Where to Draw the Line?
§6.01 INTRODUCTION
§6.02 PARTY AUTONOMY AND ITS LIMITS
§6.03 JURISDICTION AND PARTY AUTONOMY: THE ARBITRABILITY OF TRUST DISPUTES
§6.04 NATURAL JUSTICE AND PARTY AUTONOMY: SHOULD PARTIESBE ABLE TO CONSENT TO AN ARBITRATOR WHO HAS A CLEAR CONFLICT OF INTEREST?
§6.05 CONCLUSION
CHAPTER 7 Jurisdictional Findings on Provisional Measures Applications in International Arbitration
§7.01 ANTECEDENT QUESTION: ARE ANY ISSUES PRESENTED WITHREGARD TO TRIBUNALS’ SPECIFIC POWER TO AWARD PROVISIONAL MEASURES?
§7.02 ASSUMING THAT THE TRIBUNAL HAS THE POWER TO ORDER PROVISIONAL MEASURES, WHY IS A SHOWING OF JURISDICTION OVER THE UNDERLYING DISPUTE NECESSARY?
§7.03 WHY DOES A TRIBUNAL NEED TO BE ABLE TO ORDERPROVISIONAL MEASURES PRIOR TO A FINDING OF ULTIMATE JURISDICTION?
§7.04 WHAT DOES PRIMA FACIE JURISDICTION MEAN?
§7.05 CONCLUSION
CHAPTER 8 Work in Progress: Res Judicata and Issue Estoppel in Investment Arbitration
§8.01 DOCTRINE OF RES JUDICATA
§8.02 DOCTRINE OF ISSUE ESTOPPEL
§8.03 RES JUDICATA AND ISSUE ESTOPPEL IN INVESTMENT ARBITRATION
§8.04 EXPANSION OF THE PERSONA REQUIREMENT BY ISSUE ESTOPPEL
§8.05 CONCLUSIONS
CHAPTER 9 Choosing the Law Governing the Arbitration Agreement
§9.01 INTRODUCTION
§9.02 SUMMARY
§9.03 THE FRAMEWORK FOR THE ANALYSIS
§9.04 THE ENGLISH AUTHORITIES
§9.05 SEPARABILITY AND CHOICE OF LAW
§9.06 DÉPEÇAGE
§9.07 THE CORRECT ANALYSIS IN PRINCIPLE
[A] No Choice-of-Law Clause: The Significance of the Seat
[B] Express Choice of Law in the Matrix Contract
[C] Two Qualifications
§9.08 THE VALIDATION PRINCIPLE
§9.09 CONCLUSION
CHAPTER 10 Evidentiary Inferences: Do Choice of Law and Seat Make a Difference?
§10.01 THE ORIGIN AND CHARACTERISATION OF ADVERSE INFERENCES
§10.02 THE LEGAL FRAMEWORK FOR INTERNATIONAL ARBITRATION: THE IMPORTANCE OF CHOICE OF LAW AND SEAT
§10.03 THE LAW(S) APPLICABLE TO EVIDENTIARY INFERENCES IN INTERNATIONAL ARBITRATION
[A] Adverse Inferences: Procedural or Substantive?
[B] The Limited Guidance Provided by the Traditional Sources of Law
§10.04 THE EMERGENCE OF A TRANSNATIONAL LEX EVIDENTIA OF ADVERSE INFERENCES?
[A] The Source of a Tribunal’s Power to Draw Adverse Inferences
[B] Limits to Arbitral Discretion: The Role of the Law of the Seat
§10.05 THE INFLUENCE OF CHOICE OF LAW ON THE SUBSTANTIVE CONSEQUENCES OF THE ADVERSE INFERENCE
§10.06 CONCLUSION
CHAPTER 11 Legal Criteria for Granting Relief in Emergency Arbitrator Proceedings: Where Are We Now and Where Do We Go from Here?
§11.01 INTRODUCTION AND SCOPE
§11.02 THE BASIC FRAMEWORK OF EA PROCEEDINGS
§11.03 THE THREEFOLD LEGAL CRITERIA FOR GRANTING EMERGENCY RELIEF IN INTERNATIONAL ARBITRATION
[A] Urgency
[B] Prospect of Success
[C] Risk of Substantial Harm
§11.04 TOWARDS A DIFFERENTLY WEIGHTED LEGAL CRITERIA
[A] The Why: Architectural Peculiarities of EA Proceedings
[B] The How: Reconsidering the Second and Third Criteria
§11.05 CONCLUSION
CHAPTER 12 Unintended Consequences
§12.01 INTRODUCTION
[A] An Important Provision of English Statute Law
§12.02 SECTION 136(I) GENERALLY
§12.03 SECTION 136(I) IN PRACTICE: A CAUTIONARY TALE
[A] Some Preliminary Conclusions Arising from the English Case Law
[B] What Does Any of This Matter for an International Arbitration?
CHAPTER 13 Mandatory Laws: Getting the Right Law in the Right Place
§13.01 PARTY AUTONOMY AND MANDATORY RULES OF LAW
[A] Mandatory Rules of the Proper Law
[B] Mandatory Rules of Law Outside the Proper Law
[1] Laws of the Place of Arbitration
[2] Law of the Place of Performance
[3] Personal Laws of the Parties
[4] Laws of the Place of Enforcement
[5] Transnational Public Policy
§13.02 AN ATTEMPT TO GET IT RIGHT
[A] Party Autonomy
[B] Justice
[C] Consistency
[D] Sovereign Support
[E] State Legal Expansionism
[F] Efficiency
[G] Enforceability
[H] Arbitrators’ Discretion/Self-Interest
§13.03 STILL GETTING THERE
CHAPTER 14 Intra-EU BITs: Competence and Consequences
§14.01 INTRODUCTION
§14.02 BACKGROUND
§14.03 COMPETENCE AND APPLICABLE LAW
[A] Different Perspectives
[B] The CJEU and Its Case Law
[1] Opinion 1/91 – The EEA Court
[2] Opinion 1/92 – The EFTA Court
[3] Opinion 1/00 – The Joint Committee for the European Common Aviation Area
[4] The MOX Plant Dispute
[5] Kadi
[6] Opinion 1/09 – Patents Court
[7] Opinion 2/13 – European Court of Human Rights
[8] Implications of CJEU Case Law
[9] Implications for Brexit?
§14.04 CONSEQUENCES
[A] To What Extent Should Tribunals Take into Account the CJEU’s Decision?
[B] Set-Aside, Revision and Annulment
[C] Enforcement
§14.05 CONCLUSION
CHAPTER 15 Consolidation of Cases at ICSID
§15.01 INTRODUCTION
§15.02 WHAT IS CONSOLIDATION?
§15.03 THE ARGUMENTS FOR AND AGAINST CONSOLIDATION
§15.04 THE BASIS FOR CONSOLIDATION AT ICSID
§15.05 EXAMPLES TO DATE
§15.06 MANDATORY CONSOLIDATION UNDER TREATY PROVISIONS
§15.07 OTHER TREATY CONSOLIDATION PROVISIONS
§15.08 CONSOLIDATION UNDER COMMERCIAL ARBITRATION RULES
§15.09 CONSIDERATIONS FOR AMENDMENT OF ICSID RULES
§15.10 CONCLUSION
CHAPTER 16 The Chimera of Admissibility in International Arbitration
§16.01 INTRODUCTION
§16.02 ICSID ARBITRATION
[A] The Legal Framework
[B] The Experience of ICSID Tribunals: Overview
[C] The Experience of ICSID Tribunals: The BIT Precondition Objection
[1] The Story of the Swamp
[2] The Moral of the Story
§16.03 ICJ PROCEEDINGS
[A] The Legal Framework
[B] The ICJ’s Understanding of Admissibility
§16.04 CONCLUSION
CHAPTER 17 Res Judicata and the “Could Have Been Claims”
§17.01 RES JUDICATA IN GENERAL
§17.02 THE LAW APPLICABLE TO THE RES JUDICATA ISSUE
§17.03 TOWARD A BROAD CONCEPTION OF RES JUDICATA
§17.04 SHOULD RES JUDICATA COVER THE “COULD HAVE BEEN CLAIMS”?
CHAPTER 18 The Substantive Rights of Parties in Arbitration: Voie Directe and Voie Indirecte
§18.01 INTRODUCTION
§18.02 VOIE DIRECTE AND VOIE INDIRECTE
[A] Background and Prescription
[B] The Need for Reasons
§18.03 VOIE INDIRECTE IN PRACTICE
[A] Rules of the Seat
[B] Most Closely Connected to the Dispute Test
[C] Closest Connection Test
[D] The Domicile of the Person Exercising Characteristic Performance
[E] Cumulative Method
[F] International Conflict of Laws Rules
§18.04 VOIE DIRECTE IN PRACTICE
[A] General Principles of Private International Law
[B] Validity and Party Autonomy
[C] Parties’ Expectations and Intentions
§18.05 CONCLUSION
CHAPTER 19 ICANN’s Dispute Resolution Mechanisms: With Great Power Comes Great Responsibility
§19.01 INTRODUCTION
§19.02 WHAT IS ICANN?
[A] History of ICANN and Internet Governance
[B] ICANN’s Tasks and Technical Background
[C] ICANN’s Core Values
§19.03 ICANN’S ADR MECHANISMS
[A] Second-Level Domain Disputes
[B] Top-Level Domain Disputes
[1] ADR Mechanisms Prior to the Delegation of a New gTLD
[2] ADR Mechanisms after the Delegation of a New gTLD
[C] Protection Against Actions by ICANN
[1] Internal Reconsideration Process
[2] Independent Review Process
§19.04 COMPATIBILITY OF ICANN’S DISPUTE RESOLUTION MECHANISMS WITH “RELEVANT PRINCIPLES OF INTERNATIONAL LAW”?
[A] ICANN and Human Rights
[B] Due Process
[C] Further Human Rights
§19.05 CONCLUSION
CHAPTER 20 Practices, Arbitral Duties and Effects of Awards in Default Proceedings
§20.01 ARBITRATION RULES FOR DEFAULT PROCEEDINGS
§20.02 ARBITRAL DUTIES IN DEFAULT PROCEEDINGS
§20.03 DUE PROCESS AND THE UNREPRESENTED PARTY
§20.04 ENFORCEMENT OF DEFAULT JUDGMENTS: VIZCAYA CASE
§20.05 COMMUNICATIONS IN DEFAULT PROCEEDINGS
§20.06 DEFAULT PROCEEDINGS IN NATIONAL SYSTEMS
§20.07 CONCLUSION
CHAPTER 21 The Law Applicable to Non-contractual Claims in International Commercial Arbitration
§21.01 INTRODUCTION
[A] Example from Practice: A Lesson from One of Asia’s Top International Arbitrators
[B] Characterisation: The Determination of Whether a Claim Is Contractual or Not
[C] Arbitrability: Non-contractual Claims and the Scope of the Arbitration Clause
§21.02 PARTIES’ CHOICE OF THE LAW APPLICABLE TO NON-CONTRACTUAL CLAIMS IN ARBITRATION
[A] Can Arbitrating Parties Choose the Law to Govern Their Non-contractual Claims?
[B] Have the Parties Chosen the Law to Govern Their Non-contractual Claims?
§21.03 LAW APPLICABLE TO TORT CLAIMS IN THE ABSENCE OF PARTY CHOICE
§21.04 CONCLUDING REMARKS
CHAPTER 22 Life after Death: The Arbitral Tribunal’s Role Following Its Final Award
§22.01 INTRODUCTION
[A] The Functus Officio Doctrine
§22.02 CORRECTION AND INTERPRETATION OF AN AWARD AND ADDITIONAL AWARDS
§22.03 TIME LIMITS
§22.04 NOTIFICATION AND PUBLICATION OF AN AWARD
CHAPTER 23 Jurisdiction, Admissibility and Choice of Law in International Arbitration
§23.01 INTRODUCTION
[A] Costs
[B] Interest
CHAPTER 24 A Principled Approach Towards the Law Governing Arbitration Agreements
§24.01 INTRODUCTION
§24.02 TWO OPPOSING VIEWS: THE LAW OF THE MAIN CONTRACT OR THE LAW OF THE SEAT?
[A] A Presumption in Favour of the Governing Law of the Contract
[B] A Presumption in Favour of the Law of the Seat
§24.03 A PRO-VALIDATION APPROACH?
§24.04 A PRINCIPLED CANON FOR CHOICE OF LAW
§24.05 CONCLUSION
Index
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