本論文共分六章，其主要內容如下： 1.緒論；說明本論文之動機、目的、範圍、方法及限制。 2.商務仲裁之基本觀念；說明商務仲裁之意義、優點，及為解決兩岸商務糾紛之最適途徑。 3.大陸涉外商務仲裁之體制；從中共成立政權開始其涉外仲裁制度之歷史沿革，看出一九七八年中共實施經改至今之努力，並就一九八八年新《仲裁規則》之特點作分析，瞧出所以成為世界第二大仲裁中心之端倪。 4.大陸涉外商務仲裁程序與台商應注意事項；從當事人提出仲裁聲請，經仲裁庭組成與開庭，至仲裁判斷之承認與執行，引用兩岸及國際上之仲裁法規，提出台商所應認知與注意之地方，並在我國仲裁法較不實用之地方提出建議，以符合國際潮流。 5.兩岸商務仲裁之合作與展望；先就兩岸目前處理商務糾紛情形作比較，之後從互納仲裁人、聯合仲裁、共同仲裁等仲裁合作模式中，藉以經濟效率角度，提出適合台商之有效合作方式。 6.結論；為本論文之研究總結。

No abstract available. / Thesis (LL.M.)-University of Natal, Durban,1985.

In the last decade, parties to arbitration agreements have attempted to broaden the scope of judicial review of arbitral awards by contract, beyond the boundaries established in international and domestic arbitration statutes. This thesis analyzes this contractual expansion of judicial review from an international perspective. To this end, the standard of judicial review under the most important international instruments pertaining to commercial arbitration is examined: the New York Convention and the UNCITRAL Model Law on International Commercial Arbitration. The study then addresses the question as to whether provisions for heightened judicial review of arbitral awards would be enforceable under the legislation of three major players in commercial arbitration: England, France and the United States. An analysis of the legitimacy of agreements that provide for expanded judicial review under the New York Convention and UNCITRAL Model Law follows. The thesis concludes with an assessment of the impact the mentioned clauses would represent for the institution of arbitration and its advantages.

International Arbitration and its roots Arbitration, or in other words peaceful settlement of the dispute, is currently one of the most used methods of settlement of the disputes both on international and national levels. Considering the high augmentation of the disputes resolved through the means of arbitration especially in the last twenty years of this century the arbitration can boldly compete with the judicial resolution of the disputes in popularity and in the number of resolved cases. Considering the augmentation of use of arbitration clauses especially in the private law contracts, there is often a wrong idea, that the process of arbitration is primary an institute of the private law and that it is a new institute, which has been created in the modern times and historically did not exist at all. In chapters four till six of my thesis I will be focusing on proving that roots of today so often used institute of arbitration run deep in the history, till the times of Ancient Greece even, which was the cradle of the civilization as well as of the arbitration. Subsequently I will in this part map the evolution of the arbitration during the two thousand years of its existence, when on this I will show which aspects of the arbitration prevailed to these days and in which aspects contrary is the...

No description available.

published_or_final_version / abstract / Law / Master / Doctor of Legal Studies

This dissertation aims to examine The Iran-U.S. Claims Tribunal, the largest mechanism in the history of international arbitration, located in The Hague. The central thesis considered is the unique nature of the Tribunal as embodying elements of both conflict and cooperation at a time of considerable and ongoing hostility between Iran and the United States over various issues. Iran and America, following World War II, set up a unique relationship. This close cooperation resulted in antagonism after the Islamic Revolution in 1979; the American diplomats were taken hostage, and a number of multi-billion dollar contracts and transactions were terminated. Several avenues were sought to resolve the problem. Finally, the Algerian government stepped in as an intermediary to resolve the issue. Iran and the United States agreed to establish the Tribunal in 1981. The level of confrontation between Tehran and Washington was so strong that the Tribunal suspended its operation for months. The Tribunal not only managed to survive, but it also made it possible; as a safe haven, as a legitimate forum and as a joint embassy for the parties, to extend their day-to-day cooperation for almost thirty years. How and under what conditions have Iran and America, labelled by each other as the "Axis of Evil" and the "Great Satan" been able to cooperate in the absence of diplomatic relations? How do the Agents of an allegedly "World-devouring America" and the "Terrorist sponsoring Iran" meet face to face in an institution which itself is the product of severe enmity? All such questions could be answered by the unique nature of the Tribunal: its decisions are based upon "political exigency" and cultural expediency "rather than legal foundations." Two simultaneous forces of conflict and cooperation have been in process: at a time when the American navy was raiding the Iranian oil platform in the Persian Gulf, a big case amounting to billions of dollars was being negotiated at the Tribunal forum through an out-of court settlement process. At the time when this dissertation is produced, the same contending forces of discord and collaboration are in operation: on the one hand there exists Iran-US nuclear standoff on the international level, and on the other hand certain multi-billion dollar oil and Foreign Military Sales (FMS) are decided at the Tribunal. The Tribunal premises have been used as a forum for "deliberation" on major legal and political disputes. It has been both praised and blackballed. At one extreme, it has been regarded as "a gold mine of information" and at the other extreme its rulings are not considered to be applicable in other financial disputes because of the "political compromise within the Tribunal." Iran and America have found it necessary, under the condition of uncertainty, to make concessions to ensure the integrity of the Tribunal and the latter in turn has equipped itself with a proper strategy of survival by establishing its own rules and procedures. Around four thousand cases have been brought before the Tribunal, with each case involving various conflicts of interest. In all of those issues, the forces of cooperation have prevailed. By resolving those cases, the Tribunal has achieved its fundamental objectives: conflict resolution by peaceful means. The Tribunal will cease to exist only when Iran and America open diplomatic relations.

The principle of party autonomy is widely accepted in the practice of international commercial arbitration. However, it still encounters certain limitations in its applications, especially for the fact that the demands of natural justice and the public good cannot be neglected by the parties. The various states in the international system have and operate peculiar systems of mandatory rules and public policies, which tend to impart significantly on the arbitral procedure, thereby creating a situation of discordance of outcomes of arbitration in different countries. For this reason, this writer intends to examine ways by which the various procedural laws can actually be harmonised. This thesis shall therefore focus on the discordances and confusion that often arise in the interacion of the various laws that may be applicable to the arbitral process in International commercial arbitration, as well as ways of achieving a harmonisation of these laws.

This thesis deals with legislation of international arbitration in Czech republic and Portugal. The choice of international arbitration and of these countries particularly as the object of the work has not been done coincidentally of course, the reason is, despite Czech republic and Portugal are countries with that do have a lot in common, e.g. their membership in European Union, similar economic power and current situation and relatively significant activity in international trade that the area of Portuguese legislation of international arbitration and of the whole system of law from the Czech view and vice versa remains still almost unexplored. The choice of international arbitration was not random either. Such choice was made due to the fact that arbitration is probably the most significant way of out-of-court settlement of disputes in last years and decades with use still increasing. It offers parties a private settlement of litigation with easy enforceability of rendered arbitration award abroad, and foreing arbitration award at home. Therefore, the objectives of this work were not solely to describe the present legislation of international arbitration but also to enable the reader to comprehend particular legal provisions correctly in a sense of their legal background. The work analyses the...

1 Resumé Protection of consumer in arbitration Act No. 19/2012 Coll. or consumer amendment of Act No. 216/1994 Coll., on Arbitration and Enforcement of Arbitral Awards, brings plenty of new institutes which significantly improved consumer's protection from negotiating arbitration clause over arbitration proceeding to enforcement of arbitral award. All these measures were taken to oblige the requirements of European law and the demand of the public which asked for returning of trust in arbitration just by the means of the acceptance of a new legislation, which should prevent its increasing abuse against customers. Before 1. 4. 2012 the legislation was called unsuitable (or even illegal) for the application in consumer dispute. Because the process of the exclusion of disputes with consumers turned as unfeasible, for its consequence would be enormous and unbearable strain for general court, the lawmakers turned to creating almost special consumer regime for arbitration in issues of consumer contracts. Hereby the "consumer" arbitration was significantly distinguished form general adjustment and considerable number of disadvantages was eliminated. In the conclusion, we can claim that after the April amendment the Czech legal system has comprehensive and consistent adjustment of arbitration, which includes also...