The Allocation Of Power Between Arbitral Tribunals And State Courts
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Author | : Alan Scott Rau |
Publisher | : BRILL |
Total Pages | : 608 |
Release | : 2019-03-25 |
Genre | : Law |
ISBN | : 9004388923 |
The ultimate question that runs through all of our law of arbitration is the allocation of responsibility between state courts and arbitral tribunals : If private tribunals assume the power to bind others in a definitive fashion, we must ask, where does this authority come from ? Fundamentally different in this respect from a state judge, a private arbitrator may only derive his legitimacy from that exercise of private ordering and self-government which characterizes any voluntary commercial transaction. This work begins then with the dimensions of that “consent” which alone can justify arbitral jurisdiction. The discussion is then carried forward to explore how party autonomy in the contracting process may be expanded, giving rise to the voluntary reallocation of authority between courts and arbitrators. It concludes with the necessary inquiry into the autonomy with respect to the “chosen law” that will govern the agreement to arbitrate itself.
Author | : Alan Scott Rau |
Publisher | : |
Total Pages | : 0 |
Release | : 2018 |
Genre | : Conflict of laws |
ISBN | : 9789004388918 |
The ultimate question that runs through all of our law of arbitration is the allocation of responsibility between state courts and arbitral tribunals: If private tribunals assume the power to bind others in a definitive fashion, we must ask, where does this authority come from ? Fundamentally different in this respect from a state judge, a private arbitrator may only derive his legitimacy from that exercise of private ordering and self-government which characterizes any voluntary commercial transaction. This work begins then with the dimensions of that "consent" which alone can justify arbitral jurisdiction. The discussion is then carried forward to explore how party autonomy in the contracting process may be expanded, giving rise to the voluntary reallocation of authority between courts and arbitrators. It concludes with the necessary inquiry into the autonomy with respect to the "chosen law" that will govern the agreement to arbitrate itself.
Author | : Victor Ferreres Comella |
Publisher | : Cambridge University Press |
Total Pages | : 235 |
Release | : 2021-03-11 |
Genre | : Law |
ISBN | : 1108906745 |
This work is the first systematic discussion of arbitration from a constitutional perspective, covering the most important types of arbitration, including domestic arbitration in private law, international commercial arbitration, investment treaty arbitration, and state-to-state arbitration. Victor Ferreres Comella argues for the recognition of a constitutional right to arbitration in the private sphere and discusses the constraints that the state is entitled to place on this right. He also explores the conditions under which investment treaty arbitration is constitutionally legitimate, and highlights the shortcomings of international adjudication from a constitutional perspective. The rich landscape of arbitration is explained in clear language, avoiding unnecessary technical jargon. Using examples drawn from a wide variety of domains, Ferreres bridges the gap between constitutional and arbitral theory.
Author | : Hélène Ruiz Fabri |
Publisher | : Bloomsbury Publishing |
Total Pages | : 704 |
Release | : 2022-05-19 |
Genre | : Law |
ISBN | : 1509929053 |
Written by leading experts in the field, this collection offers a critical and comparative analysis of the existing case law on international investment law. The book makes a topical contribution to the existing literature, showing most notably that: (1) international investment law has a longer history than that generally considered and that this history is fundamental to understanding its development; (2) international investment law is crafted today by a large number of actors. These include not only investment arbitrators, but also a variety of international and national courts and tribunals; and (3) the literature and case law in languages other than English and from different legal cultures is essential to grasp the essence of the development of the topic. This book brings together more than 40 experts from different countries and legal traditions and combines conceptual analysis and archival investigation of landmark case law to provide the reader with a fresh and innovative understanding of the breadth of international investment law.
Author | : Jonathan Harris |
Publisher | : Oxford University Press |
Total Pages | : 449 |
Release | : 2022-11-30 |
Genre | : |
ISBN | : 0192867989 |
This collection is in honour of the remarkable career of Lord Collins. The book offers a set of unique insights into the conduct of cross-border litigation; the judicial role in international cases; the shape of English private international law; the conduct of international arbitration; and the interface with public international law.
Author | : Franco Ferrari |
Publisher | : Kluwer Law International B.V. |
Total Pages | : 559 |
Release | : 2021-03-09 |
Genre | : Law |
ISBN | : 9403531746 |
International Arbitration Law Library # 61 The 1958 New York Convention is universally acclaimed as one of the most important instruments on international commercial arbitration. Although the Convention ensures that contracting States cannot justify failure to comply with their treaty obligations by reference to domestic law, the courts of different contracting States apply the Convention differently. This diverging case law arises from uncertainty as to whether certain concepts employed in the Convention must be construed autonomously or in light of domestic law. This incomparable analysis of the New York Convention as an instrument of uniform law presents insightful contributions by some of the world’s most distinguished academics and practitioners in the field of arbitration and is sure to significantly contribute to arbitral practice and jurisprudence in the Convention’s more than 160 contracting States. With extensive reference to case law from major arbitration hubs, the contributors examine the Convention with the aim of identifying the boundaries between autonomous and domestic concepts. Key elements covered include the following: the role of private international law under the Convention; notions of arbitrability and arbitral award; procedures for the enforcement of awards; nullity, invalidity, and conflict of laws under Articles II(3) and V(1)(a); the incapacity defence under Article V(1)(a); deviations from procedure; autonomous boundaries as to what falls under the issue of scope; and public policy under the Convention. The first and only resource of its kind, this book provides an invaluable clarification of the extent to which the Convention leaves room for the application of domestic law and, if so, how to determine which particular domestic law may be applicable. It will be welcomed by counsel, judges, arbitrators, and academics throughout the States that have signed the New York Convention.
Author | : James H. Carter |
Publisher | : Oxford University Press |
Total Pages | : 725 |
Release | : 2013 |
Genre | : Language Arts & Disciplines |
ISBN | : 019993861X |
International Commercial Arbitration in New York focuses on the distinctive aspects of international arbitration in New York. Serving as an essential strategic guide, this book allows practitioners to represent clients more effectively in cases where New York is implicated as either the place of arbitration or evidence or assets are located in New York. Each chapter elucidates a vital topic, including the existing New York legal landscape, drafting considerations for clauses designating New York as the place of arbitration, and material and advice on selecting arbitrators. The book also covers a series of topics at the intersection of arbitral process and the New York courts, including jurisdiction, enforcing arbitration agreements, and obtaining preliminary relief and discovery. Class action arbitration, challenging and enforcing arbitral awards, and biographical materials on New York-based international arbitrators is also included, making this a comprehensive, valuable resource for practitioners.
Author | : Paul B. Stephan |
Publisher | : BRILL |
Total Pages | : 320 |
Release | : 2024-03-04 |
Genre | : Law |
ISBN | : 9004696105 |
The view that international law functions independently of municipal law (hermetically), does not reflect contemporary international practice. Instead, international law in the modern era engages intensively and extensively in projects that occupy areas traditionally governed by municipal law, such as business regulation as well as the rights and duties of persons. The resulting overlap in legal dominions requires a new conceptualization of the relationship between international and municipal law. This book explores the mechanisms employed to allocate authority to international and municipal law in international disputes. Taking a broader view, this course explores the work of international bodies, domestic courts, and informal dispute resolution, including diplomacy and the use of coercive measures. It identifies the mechanisms used to manage the overlapping dominions of international and municipal law as pooling, referral, and nesting. In the final chapter, the book explores how different opportunities and ambitions for international law can affect the use of these mechanisms in particular international disputes.
Author | : Anne Peters |
Publisher | : BRILL |
Total Pages | : 656 |
Release | : 2021-05-25 |
Genre | : Law |
ISBN | : 9004466258 |
The plight of animal individuals and species inflicted on them by human activity is a global problem with detrimental repercussions for all humans and for the entire planet. This book gives an overview of the most important international legal regimes that directly address and indirectly affect animals. It covers species conservation treaties, notably the international whaling regime, the farm animal protection rules of the EU, international trade law and the international law of armed conflict. It also analyses the potential for an international regime of animal rights. Finding that international law creates more harm than good for animals, the auther suggests progressive treaty interpretation, treaty making and animal interest representation to close the animal welfare gap in international law. A body of global animal law needs to be developed, accompanied by critical global animal studies.
Author | : Chin Leng Lim |
Publisher | : BRILL |
Total Pages | : 288 |
Release | : 2024-09-30 |
Genre | : Law |
ISBN | : 9004696164 |
Criticism of colonial justifications has been familiar since the age of Sepúlveda and Las Casas. Yet today it is said that international law is, and always was, an instrument of colonialism. It is true that the ius gentium and the Law of Nations failed to prevent colonialism and were used in fact to justify colonialism. Still, such failures which occurred over the successive periods of European colonization of non-European peoples did not implicate the whole of international law thought. That is just a modern exaggeration, but rather than repair the international law that we have, for example in our discussions about colonial reparation, some now wish us to reject international law altogether. In seeking to cast present-day criticisms in a proper light, these lectures at the Hague Academy had discussed the more notable literature, including in judgments and arbitral awards, from the time of the classic works that are connected to the history of the subject to the present day. Now presented in pocketbook form the objective is the same; which is to explain the aims and methods of post-colonial criticism, and to reject the view that it is too late for international law.