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Thesis (Ph.D.)--Murdoch University, 2008. / Thesis submitted to the Faculty of Law and Business. Includes bibliographical references (p. 352-358)

Thesis (Ph. D.)--University of Hong Kong, 2010. / Includes bibliographical references (leaves 112-114). Also available in print.

Thesis (M.A.)--University of Hong Kong, 1975. / Typescript.

Thesis (M. Sc.)--University of Hong Kong, 2001. / Includes bibliographical references (leaves 182-188).

This thesis explores problems regarding the reception the UNCITRAL Model Law on International Commercial Arbitration (ML) in Canada, Hong Kong and Russia. Focusing on the relationship between national courts and arbitrators, it argues that the ML fosters gradual harmonization of law on international arbitration, while accommodating the particular needs of the legal cultures and traditions of Canada, Hong Kong and Russia. The importance of this study derives from the fact that the experience of these three countries has been, and it still is, a guide for a number of other countries considering the adoption of the ML and modification of their arbitration laws. First, the thesis explores the implementation of the ML at the national level, in each of the countries of adoption in order determine, the legal changes, if any, brought about by the adoption. The hypothesis is that legal borrowing can lead to different results in countries with different legal traditions, different levels of economic development and different political structures. At this level the analysis focuses on statutory frameworks and judicial practice in these countries. Second, the thesis compares the results from the study at the national level in order to explore the ways in which the same pattern (that is, the ML) has been modified to reflect the socio-economic environment and principles of old systems, and to determine changes to the original model. The hypothesis is that arbitral tribunals are promoters of a new "internationalized" legal culture and that national judges and courts, in comparison, are more likely to reflect local or national legal cultures. The thesis concludes that variations in the application and interpretation of the M L in the three countries does not mean that the ML cannot bring about the harmonization of laws. However, the ML is not a transplantation or duplication of foreign law, but a project of reception. In that way, the ML serves as a basis for creativity, rather than representing the imposition of a new, and perhaps, inappropriate; legal culture.

Eligibility disputes at the Olympic Games are ultimately resolved by the Ad Hoc Division ("AHD") of the Court of Arbitration for Sport. This paper critically examines the AHD both from within and without. The first part of this thesis describes eligibility disputes at Games time, and how they are resolved. The paper begins with a brief look at the history of athlete participation in the Olympic Games. It then deals with the concept of eligibility, and sets out the rules which govern same for the Olympics. These rules are set by a number of separate but related entities, namely the International Olympic Committee, the International Federations, the National Olympic Committees, and, finally, the World Anti-Doping Agency. The roles of each of these bodies are examined in order to provide the context in which disputes are resolved. This paper then surveys the parameters in which the AHD operates which have been set over the years by domestic courts with an Anglo-American tradition. The performance of the AHD is then critically examined with a view to making recommendations for its improvement. The second part of this thesis surveys the ways eligibility disputes are resolved in the major north American professional sports leagues and the NCAA, with a view to suggesting improvements in the AHD process. This thesis concludes by offering recommendations to the AHD process in two areas: operational and structural. Several operational improvements are suggested, the main ones of which are that all parties affected by a dispute be offered an opportunity to participate in before the AHD, and parties be given the opportunity to appoint the Panel. The structural change suggested is that athletes be given formal input into the administration of the Games, with the Athletes' Commission being the obvious body which could form the basis for a bargaining unit. It is suggested that questions surrounding the legitimacy of AHD will remain while ever athletes have no formal say in its composition or operation.

Arbitration is one of the oldest legal systems of solving disputes, albeit, it was simple and without any power to enforce the outcome of the tribunal. In modern ages, arbitration has transformed to a more complicated and sophisticated system of solving international commercial disputes. In recent decades, enforcement of tribunal award benefited from various conventions like New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958). However the enforcement still has few difficulties. One problem is related to the enforcement of the award in different countries. Based on Article V (2(b)) of New York Convention, countries can prohibit enforcement of award if it is against public policy of that country. This broad definition has created many problems especially in some Islamic countries in Middle East due to frequent use of this defense. Islamic countries in Middle East have tried to implement new arbitration legislations from western countries in order to acclimate themselves with modern International commercial and political relations. However facing biased actions from western countries toward their cultures, have made these adaptations more challenging. Considering the claim of both parties, one should not forget the strong influence of culture in International relations as it defines many actions and concerns of society. Ignoring this issue can create many problems and hostile atmosphere between nations that even affect International commercial arbitration enforcements. Knowing the significance of effect of culture, it is essential for many lawyers, scholars and practitioners to study and learn more about culture and norms of other countries. Multi-cultural countries like Canada and commercial hubs like Dubai can facilitate understanding different cultures by creating cultural and legal centers. / Thesis (Master, Law) -- Queen's University, 2012-09-19 23:29:51.979

No Abstract

This thesis not only seeks to demonstrate the requirements of and procedures for recognition and enforcement of foreign arbitral awards in the Republic of China (ROC), but also explores whether ROC’s legislation and practices regarding recognition and enforcement of foreign arbitral awards comply with international ‘best practice’ standards as contained in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL Model Law. Even though ROC’s former legislation and practices did not conform to these standards, the present legislation and practices do comply with the New York Convention and the UNCITRAL Model Law. Although ROC and the People’s Republic of China (PRC) both insist on a ‘one China’ policy and each claims that it represents the whole of China, each has its own legal system. Nonetheless, ROC adopted the ‘regional conflict of laws’ theory based on the concept of ‘one country, two regions’ to deal with cases relating to recognition and enforcement arbitral awards rendered in PRC. In the context of that theory, this thesis explores the requirements of and procedures for recognition and enforcement of PRC arbitral awards in ROC, and whether there are any deficiencies in this regard. The thesis concludes that the ROC legislation and practices regarding recognition and enforcement of PRC arbitral awards in ROC are consistent with the New York Convention and the UNCITRAL Model Law. The government of PRC resumed the exercise of sovereignty over Hong Kong and Macao from 1 July 1997 and 20 December 1999 respectively. However, PRC adopted the principle of ‘one country, two systems’. PRC authorizes the Hong Kong Special Administrative Region (Hong Kong SAR) and the Macao Special Administrative Region (Macao SAR) to exercise a high degree of autonomy and to enjoy executive, legislative and independent judicial, including that of final adjudication. Thus, the ROC legislation deems that Hong Kong and Macao arbitral awards are foreign arbitral awards in ROC. So, the legislation and practices regarding recognition and enforcement of Hong Kong arbitral awards and Macao arbitral awards also are in conformity with the New York Convention and the UNCITRAL Model Law. Moreover, the legislation and practices regarding recognition and enforcement of foreign, PRC, Hong Kong, and Macao arbitral awards go further than international standards set out by the New York Convention and the UNCITRAL Model Law. Applying for recognition or enforcement of a foreign, PRC, Hong Kong, or Macao arbitral award, an original arbitration agreement or an original arbitral award can be substituted by an electronic format, which was made originally and can show the whole text as well as can be downloaded for examination. Furthermore, the courts of ROC construe the limitations regarding recognition or enforcement foreign, PRC, Hong Kong, or Macao arbitral awards narrowly. In addition, even though the ROC legislation regarding recognition and enforcement of foreign, Hong Kong, and Macao arbitral awards adopts the principle of reciprocity, the ROC Courts adopt the notion of comity. The thesis clarifies recognition and enforcement of PRC arbitral awards in Hong Kong, and recognition and enforcement of Hong Kong arbitral awards in PRC as well. Hong Kong arbitral awards are enforceable in PRC, and PRC arbitral awards also are enforceable in Hong Kong in accordance with the Arrangement Concerning Mutual Enforcement of Arbitral Awards Between Mainland and the Hong Kong SAR 2000 (PRC) and the Arbitration (Amendment) Ordinance 2000 (Hong Kong SAR) respectively based on the principle of ‘one country, two systems’. Both the provisions of the Arrangement Concerning Mutual Enforcement of Arbitral Awards Between Mainland and the Hong Kong SAR 2000 (PRC) and the Arbitration (Amendment) Ordinance 2000 (Hong Kong SAR) comply with the international standards set out in the New York Convention and the UNCITRAL Model Law.