The practice of international trade is specific and evolves rapidly in accordance with its needs. Today arbitration constitutes the usual way to settle disputes of international commerce. However, certain rules of arbitration do not seem to be adapted with this practice. The written form of the arbitration agreement as required by, inter alia, the New York Convention and the UNCITRAL Model Law on International Commercial Arbitration is one of them. First this thesis presents the rules of these two instruments. Then international trade's practice is examined, and especially the incorporation of arbitration clauses by reference and the use of electronic means to conclude such clauses. There is a noteworthy discrepancy between the rules and reality of trade. / Having exposed the various difficulties, this thesis examines national laws and case law in order to determine whether they offer satisfactory solutions. Different interesting answers have been brought in Civil Law as well as Common Law countries. Yet they remain local and do not allow for harmonization worldwide. They even often vary one from another and are sometimes contradictory. / A more satisfactory solution could be found on the international level, and more specifically by the UNCITRAL. Indeed the Commission entrusted the Working Group II the mission of proposing a solution. A proposal of compromise has been drafted, namely, a revised article of the Model Law and an interpretative instrument of the New York Convention. This soft proposal is interesting but will perhaps not be able to settle all the problems related to the issue of the arbitration clause's form.

Thesis (M.A.)--City University of Hong Kong, 2006. / "A dissertation paper undertaken in partial fulfillment of the Master of arts in arbitration and dispute resolution." Title from title screen (viewed on Sept. 20, 2006) Includes bibliographical references.

Thesis (M.A.)--City University of Hong Kong, 2005. / Title from title screen (viewed on Mar. 27, 2006) "MA in dispute resolution and arbitration." Includes bibliographical references.

Thesis (doctoral)--Jāmiʻat al-Qāhirah. / Summary in English. Title on added t.p.: The bond of arbitration in Islamic jurisprudence & positive law. Includes bibliographical references (p. 673-786) and index.

published_or_final_version / Law / Master / Doctor of Legal Studies

Thesis (M. Sc.)--University of Hong Kong, 2002. / Includes bibliographical references (leaves 115-117).

The subject of this thesis is the judicial review of arbitral awards in China. Chinese arbitration law provides a distinct set of rules for reviewing international and domestic awards, which is usually referred to as the dual-track system (“Shuang Gui Zhi”). First, the judicial review standard is dual-track because international awards are subject to procedural and limited review, whereas domestic awards are subject to substantial review. Second, the review procedure is also dual-track because a reporting mechanism under which the lower courts cannot deny an international award without confirmation by the Supreme People’s Court of China is applied to international awards but is not applied to domestic awards. The following question arises: Should the dual-track judicial review system for arbitral awards be harmonised into a single system, and if so, how should it be accomplished. This question has sparked heated debates among scholars and practitioners. It is important because appropriate and efficient judicial review of awards is essential to the functioning and development of the arbitration system in China. The research is based on the theory of path-dependent and institutional change. My consideration of the future of the dual-track system is centred on the wisdom of the original policy considerations behind the dual-track judicial review path, the solidity of the institutional foundations of the dual-track judicial review path and feedback on the dual-track system from judicial practice and the arbitration market. The research critically examined the policies and institutions behind the design of the dual-track judicial review and conducted an empirical study of the feedback of the design, which included a comprehensive review of various materials, cases and data relating to the subject. The thesis concluded that the dual-track review path should be reformed by harmonising the dual-track review standard while maintaining and revising the dual-track procedure. The dual-track review standard should be uniform, and the limited scope of procedural review should be applied to both domestic and international awards. Policy and institutional foundations have failed in the substantial review of domestic awards due to the disruption in boundaries between international business and Chinese domestic business, as well as a weakened distinction between international and domestic arbitration commissions. The case study and the survey provide further empirical evidence that supports my argument, which revealed that the dual-track standard causes chaos and abuse of law in judicial practice and has gained negative feedback from arbitration market participants. In contrast, the dual-track judicial review procedure should be maintained and revised. The study indicated that the reporting mechanism still acts as a positive force to control the outcome of reviews and secure proper and uniform application of the law. Despite its shortcomings, it still plays an important role in counteracting the negative effect of local protectionism and reinforces confidence of foreign investors in arbitration and within the legal infrastructure in China. Based on the above findings, the author proposed a new regulatory framework designed to be sufficiently flexible and current for meeting the practical requirements of arbitration, while considering suitable interaction between arbitration bodies and courts. Specifically, the thesis suggested that the Arbitration Law should be revised as a unitary and exclusive legal framework for regulating judicial review of arbitral awards, and for incorporating the rules of enforcement of arbitral awards specified in the Civil Procedural Law. Although separate regimes for domestic and international arbitration should be maintained, the criteria for differentiating various types of arbitral awards should be clarified and redefined. Finally, the thesis made several concrete suggestions for improving specific provisions of the law that govern judicial review of arbitral awards. / published_or_final_version / Law / Doctoral / Doctor of Philosophy

The thesis advocates for recognition and enforcement of arbitral award, considering the requirements of and procedures for the recognition and enforcement of an arbitral award. International arbitration is the preferred mechanism for resolving oil and gas disputes due to its counted advantages over litigation. Most times, the party’s concern is on how the outcome of the arbitration proceeding is to be secured and the procedure to take. This thesis analyzes the legal frameworks for the recognition and enforcement of foreign arbitral awards in England and Wales, Nigeria and United States, laying emphasis on the approach to the implementation, similarities and dissimilarities that exist. In addition, it considers whether the procedure for enforcement reflects the objectives of achieving the effect of an award or if the procedure draws a balance with parties’ choice and restriction of parties’choice. That is to say, there are examples where the procedure for recognition and enforcement is binding without further consideration on the interest of the awardholder or the award-loser (this is analyzed on the aspect of Multi-door courthouse (MDC) system). Within this area of research, relevant international conventions on the recognition and enforcement of an arbitral award are considered, bearing in mind the central aim of this research: legal effect of an award and impact of the conventions in the England and Wales, Nigeria and United States legal systems. The Conventions discussed have guiding principles for recognition and enforcement of award and the countries used as case study have ratified these Convention. However, the thesis evaluates more closely on whether the national laws comply with best international practice standard especially as embodied in New York Convention 1958 (NYC). The NYC is praised as “utmost enactment”, and has been incorporated in the England, Nigeria and United States legal systems. The aim of NYC is the harmonization of the recognition and enforcement procedure among Contracting States, through stipulating for the procedure and grounds for refusal of enforcement of award under its articles III, IV and V. It is appropriate to examine the national courts reactions to these grounds and impact of the NYC standard grounds for refusal of arbitral award to the oil and gas disputes. This research considers whether the national laws used as case study comply with the NYC procedural standard. The thesis finds that the national laws are generally consistent with the NYC. Furthermore, the interpretation given by these legal systems are narrowly or broadly construed, which means consistency is at different levels. The thesis concludes that the effective and appropriate implementation of the recognition and enforcement of award by the judicial system and arbitrators will determine the extent of the law’s efficiency and achievement of the legal effect of an award. In addition, the Courts, parties and arbitrators are enjoined to pay utmost regard to the overriding concept of the law of the recognition and enforcement of an arbitral award.

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This thesis addresses the question of the application of a supra-national legal regime to the substance of disputes arising from State contracts in the context of international arbitral dispute settlement. Foreign private parties seek to subject the merits of their contractual relationships with a State arising from a State contract to a legal regime superior to the national law of the State party. Such a supra-national legal regime has been advanced through a de-localization trend in international arbitration. In the main, the de-localization trend defies a jurisdictional concept of the legal regime governing a State contract with a view to dissociating the contract from the legal jurisdiction of the State party. How paradoxical the idea of subjecting the substance of a State contract to a Stateless legal regime proves is an issue that the present thesis embarks upon.