Thesis (M.A.)--City University of Hong Kong, 2007. / Title from PDF t.p. (viewed on Sept. 7, 2007) "Master of Arts in arbitration and dispute resolution 2006/2007, LW6409A research project" Includes bibliographical references.

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Arbitration and mediation belong to the popular methods used for the international commercial disputes. In the diploma thesis, the author mainly describes the combinations of the processes, focusing on the med-arb with one neutral. Med-arb is considered by the academics to be a controversial method. Since the topic is examined in the context of international commercial disputes, the author analyses not only the Czech law but also foreign jurisdiction and rules of the international organisations. She also refers to recently published researches, such as the International Arbitration Survey 2018 safeguarded by Queen Mary University or the reports of the Herbert Smith Freehills, Pricewaterhouse Coopers and International Mediation Institute. In the first chapters of the thesis, the author describes the individual ADR methods and their combination. The second and third chapter focuses on positives and negatives connected with the method. The effectivity of the process, flexibility, possible loss of impartiality of med- arbiter and conflict of interest are discussed. Following this information, the author presents in the fourth chapter how to work with med-arb in order to eliminate the negative aspects. She gives the attention to the demands on the mediator and arbitrator which the med-arbitrator has to...

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The treatment of international commercial arbitration in the EU judicial area has been intensely debated, particularly in relation to the scope of the arbitration exclusion contained in the 'Brussels I Regime,' the three EU Brussels instruments on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The original Brussels Convention was replaced by the Brussels I Regulation, which was in turn replaced by the Brussels I Recast, the current EU legislative framework on jurisdiction. Arbitration was excluded from the scope of the Brussels Convention by virtue of Art 1(4), and the same arbitration exclusion is retained in Art 1(2)(d) of the Brussels I Regulation and the Brussels I Recast. Yet, the interaction of commercial arbitration with the Brussels I Regime in the EU remains controversial despite the arbitration exclusion. The controversy is largely based on the unregulated interface between commercial arbitration and the Brussels I Regime, which is created by the fact that neither the Brussels I Regime nor the New York Convention provide mechanisms to properly address the situation in which matters that are ordinarily addressed in international commercial arbitration may also fall within the material scope of the Brussels I Regime. It follows that international commercial arbitration based on the New York Convention and international commercial litigation based on the Brussels I Regime may interact in the process of the arbitral tribunals and courts of Member States exercising jurisdiction in civil and commercial matters, as both instruments in any such interaction each require respect and obedience, but do not otherwise regulate their potential conflict, this can lead to an undesirable degree of uncertainty between the two regimes. The Brussels I Recast contains a new Recital 12 that provides greater clarity in relation to the scope of the arbitration exclusion in Art 1(2)(d). However, the Recital does not entirely resolve all the questions concerning the arbitration/litigation interface. Therefore, in view of the remaining problems which the Brussels I Recast did not specifically address, it is suggested in this thesis that: (1) the wording of the Treaties relating to the exclusive external competence of the EU should be made clearer; (2) specific rules that will allow the Member State court with jurisdiction under the Brussels I Regime the possibility of staying the litigation at the request of the arbitral tribunal should be included in the future revision of the Brussels I Regime. The proposed solution would not undermine the operation of the New York Convention; neither would it create exclusive external competence of the EU in aspects of international commercial arbitration, which is the main political concern of some Member States with regard to partially including arbitration within the scope of the Brussels I Regime.

L'arbitre est un juge privé, il tranche, il juge, et il détient la balance de la justice, pourtant sesdécisions ne seront exécutoires que si le juge étatique compétent le décide. Ainsi soumise aucontrôle du juge, la sentence arbitrale s'intègre dans l'ordre juridictionnel. Elle doit doncrespecter l'ordre public et, plus généralement, les principes directeurs du procès. Certes, c’estune sentence oeuvre de justice et, au même titre que les décisions des tribunaux étatiques,bénéficie de l'autorité de la chose jugée.Les textes légaux et les règles qui gouvernent la procédure arbitrale ont une très grandeimportance tant pour les parties, que pour les arbitres. Ce sont en effet ces règles, et lapossibilité de les choisir, qui participent à la spécificité de l’arbitrage.La présente thèse identifie et analyse les diverses facettes de l'intervention du juge dans laprocédure d'arbitrage. S'il s'avère d'un précieux appui à l'arbitrage, le juge est aussi chargéd'en vérifier la régularité et d'en assurer l'efficacité. / The referee is a private judge, he slice, he Judge, and it holds the scales of justice, however itsdecisions will be binding only if the competent national judge decides. And subject to judicialcontrol, the award is part of the judicial order. It must respect the public order and, in general,the guidelines of the trial. Admittedly, this is an award work of justice, as well as thedecisions of state courts, has the authority of res judicata.Legal texts and rules governing the arbitration proceedings are very important for bothparties, for the referees. It is these rules, and the ability to choose which specific feature ofarbitration.! It is these rules, and the possibility of choosing, involved in the specificity ofarbitration.This thesis identify and analyze various aspects of judicial intervention in arbitration. If Itbecomes a valuable support to arbitration, the judge is also responsible for verifying theregularity and ensure efficiency.

Nowadays, arbitration is increasingly defined by its procedural flexibility and suitability to adapt to the needs and circumstances of different parties in different situations. In so being, arbitration employs the agreement to arbitrate as the device through which parties can utilise this procedural flexibility to create an exceptionally party-oriented process. Consequently, the drafting of these agreements and the choices concluded by the parties in them can very much determine whether a particular process is going to produce an efficient and effective outcome or rather frustrate the intentions of the parties and, generally, the objectives of international commercial arbitration. This thesis looks into the most influential decisions/choices made by the parties during the drafting stage of their arbitration agreements and attempts to underline the best practical and legal techniques to approach these decisions within today’s modern regulations of international commercial arbitration. The thesis begins its analysis by examining the separate procedural nature of arbitration agreements in comparison to the substantive nature of ordinary contracts. Such examination revealed that the separability of arbitration agreements produces certain consequences that can potentially uphold arbitration agreements in situations where the main contract was found illegal, non-existent, or invalid, for instance. A clear recognition of the distinct nature of arbitration agreements and the effects of that on the status of arbitration clauses, specifically, can provide the parties, from the very beginning, with rather precise expectations as to the future status of their arbitration agreement. In focus on the role of parties’ autonomy in producing timely awards, it was essential to analyse the different limitations that could restrict this autonomy and, possibly, frustrate the expectations and intentions of the parties. Such analysis revealed that these limitations were limited to incapacity, non-arbitrability, waiver of right to arbitrate, as well as public policy and mandatory rules of law. Finally, in scrutinising the most influential choices which parties can make in their arbitration agreement to positively and effectively create an intelligent international arbitration settlement, it was found that these choices mainly consisted of the choice of the seat of arbitration, the arbitrators, the language of the arbitration, and the law(s) applicable to the arbitration. Throughout this thesis, it is argued that through the consensual nature of international arbitration along with the autonomy bestowed upon its parties, the latter can have a better chance of achieving a practically and legally efficient settlement.

International arbitration, as an essential part of any modern legal system, needs provisional measures to protect the rights and interests of the arbitration parties while they are awaiting the final decision of the tribunal. The existence of a legal framework enabling cross-border enforcement of such measures is of great importance in the EU, which allows free movement of citizens, assets and trade within its single European market. However, the enforcement of such measures within the EU lacks a legal framework. This is due, primarily, to two interrelated reasons. The first is the failure of international conventions to address the issue of the cross-border enforcement of provisional measures and to resolve jurisdictional uncertainties between arbitral tribunals and national courts. The second reason is that the EU's attempts to remedy the shortcomings created by international conventions -via the Judgment Regulation ("The Recast") and decisions of the CJEU- have ultimately subverted the very system it sought to enhance. The aggregate effect of this failure has been overall increased complexity. This thesis will try to answer three questions: 1) Is it possible to find a solution to deal with the uncertain positions of arbitration agreements and proceedings within the EU, and can the suggested solution be utilised to help the regulation and use of provisional measures?; 2) Is it possible to harmonise the different approaches taken by Member States’ arbitration rules on the jurisdictions of national courts and arbitral tribunals in respect of granting provisional measures?; 3) Is it possible to achieve a cross-border enforcement mechanism for tribunal-ordered and court–ordered provisional measures (in support of arbitration proceedings) in the EU?In order to answer these questions, the thesis proposes the following: (1) Recognising an exclusive jurisdiction for the seat court to decide on the existence of the arbitration agreement; (2) Providing an exclusive jurisdiction for the arbitral tribunal to rule on the existence of the arbitration agreement after its formation; (3) Recognition of a supervisory role for the seat court in granting provisional measures and (4) Enforcement of tribunal-ordered measures in the form of awards. It is hoped that these suggestions will help determine the jurisdictions of arbitration tribunals and national courts in respect of provisional measures and arbitration agreements. It will also create a viable framework for cross-border enforcement of tribunal-ordered and court–ordered provisional measures. It is hoped that these suggestions will consequently help improve the efficiency of arbitration as a valuable form of alternative dispute resolution.

International commercial arbitration ('ICA') is typically characterised as a procedural alternative to litigation in national courts. The great majority of scholarly literature on ICA relates to its procedure, as opposed to substance. This is not surprising since, in ICA, the governing substantive law is usually the national law of some state. One might therefore expect that there would be no difference between the decisions of arbitrators and judges on matters governed by substantive law. However, this intuition remains untested. ICA exists outside the legal system of any state and is specifically adapted for the resolution of international commercial disputes. The decisions of international arbitrators are fertile ground for the growth of international (i.e., transnational) commercial law. A better understanding of arbitrators' decision making will therefore shed light on how international commercial law is likely to evolve. Such understanding would also enable both consumers and providers of arbitration services to make better-informed decisions. International arbitrators' decisions are not susceptible to traditional legal analysis because only a tiny, non-representative sample of arbitral awards is published. The researcher simply lacks access to the necessary data. For the same reason, quantitative statistical studies of arbitrators' decisions are unlikely to yield useful insights. This thesis adopts a sociological approach. It identifies social norms that constitute an incipient culture of ICA and assesses the effects of these norms on arbitrators' decisions on the merits. Part I consists of two case studies that focus on specific areas of contract law. These case studies, which employ standard comparative law methodologies, provide evidence that the outcomes reached in ICA do diverge from those reached in national court litigation, even when arbitrators and judges purport to apply the same substantive laws. Part II employs the sociological methodology of 'grounded theory' to explain this divergence. It analyses the writings of arbitrators, counsel and commentators in order to describe two classes of social norms: those arising from the institutional structure of ICA and those arising from the values shared by international commercial arbitrators. The thesis concludes by predicting, in general terms, the effects of these social norms on arbitrators' decisions on the merits. It also suggests the specific contract law doctrines that international arbitrators will tend to prefer. These doctrines represent a likely future of international commercial law.

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. / Law, Peter A. Allard School of / Graduate