Historiquement, l'arbitre et le juge sont un vieux couple. Cette union légale procède de l'assistance technique que ce dernier porte à l'arbitre. Les nombreux dysfonctionnements que connaissent les justices étatiques des États membres de l'OHADA poussent ces derniers à réorganiser cette institution phare des États. A l'instar des États-Unis, du Canada ou encore de la France, les États membres de l'OHADA peuvent également opter pour une déjudiciarisation qui, délesterait le juge étatique de toutes ses tâches supplémentaires, dont celles relevant de l'arbitrage, spécifiquement pour les États de cet espace juridique. Dans cette hypothèse, il s'agira de bâtir un système arbitral totalement affranchi de toute intrusion du juge étatique. Ces travaux s'inscrivent donc dans une logique de droit prospectif, l'objectif étant à terme de présenter un droit de l'arbitrage totalement émancipé de l'apport du juge et ainsi, véritablement conférer à cette justice privée son caractère indépendant tant vanté. / Historically, the referee and the judge are an old couple. This legal union proceeds from the technical assistance that the judge brings to the referee. The numerous issues faced by the state courts of the OHADA member states are forcing them to reorganize this all important institution. Just like in the United States, Canada or France, the OHADA member states can also opt for a judicial injunction, which would relieve the state judges of additional duties, including those related to arbitration specifically for the member States of this legal environment. In regard to this, it will be useful to build an arbitral system completely free from any intrusion of the state judge. This work is therefore part of a prospective-law approach, the ultimate goal being to present a right for arbitration totally liberated from the contribution of the judge and thus, truly confer to this private justice it’s independent character.

While international arbitration offers the prominent scheme for resolution of transnational disputes, the arbitration community must constantly examine areas of concern. Any system of justice, including the arbitration system, is not meant for abuse. Thus, it would be paradoxical to support a mischief that the arbitration system seeks to obviate. This could cast doubts as to the system's efficiency and induce distrust in a system formed to accommodate parties' interests and uphold their common intentions. In recent years, international arbitration has been plagued by different forms of procedural abuse. Abusive practices developed by parties may undermine the fair resolution of disputes and frustrate the administration of arbitral justice. There are pre-existing tools and legal rules at the disposal of arbitrators that can be utilised to prevent abuse and administer arbitral justice. However, these tools are inherently rigid in their application. The thesis introduces the principle of abuse of rights in international arbitration and argues for its application as a general principle of law to prevent the transmogrification of international arbitration into a process profoundly tainted with abuse. The virtue and efficacy of a single theory with a wide scope of application and an overarching premise, is that it can be used to address different abusive behaviours, and equally enjoys the flexibility of general principles of law.

The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("the New York Convention") has provided a unique legal framework for the recognition and enforcement of foreign arbitral awards and arbitration agreements. Having been adopted by 159 States at the time of this thesis, the New York Convention represents the most significant convention in the field. Having been in force almost 60 years, it is time to assess its meaning for international arbitration. This thesis first examines the contribution of the New York Convention to the development of arbitration to date and second explores whether it has a contemporary role to play. Focusing on both its contribution through its original objective and its effect on the development of a favourable attitude towards international arbitration by courts and legislators, the study demonstrates that the New York Convention has had an impact beyond that which its drafters intended. Regarding its contemporary relevance, the thesis argues that persistent issues in the enforcement of arbitral awards proves that the New York Convention has no active relevance for contributing to facilitate enforcement of arbitral awards.

In the current investment climate, most investor-state disputes are settled through investment arbitration. Investor-state arbitration enables the foreign investor to bring a case before a neutral forum, whose decision is binding and enforceable in countries across the world. In instances where the dispute is governed by an arbitration clause, the clause places the disputing parties under the jurisdiction of an arbitral tribunal. In the event of achieving a victory, the investor may nonetheless come up against the obstacle of state sovereignty, even though the state party has ostensibly waived sovereign immunity from jurisdiction. If a state rejects to comply with an award, then investors must commence a worldwide search (forum-shopping), with a view to retrieving the assets that have been awarded. In instances where the state party is victorious, there is a danger that the award payment will not be made if the foreign investor has already declared bankruptcy. Although there are two Conventions (ICSID and the New York Convention) that facilitate the enforcement of arbitral awards, neither one is sufficient to preclude the emergence of the enforcement issue. In both instances, this issue is damaging as it wastes time and money, ultimately contributing to wider inefficiencies and uncertainties in investor-state arbitration. In addressing themselves to this problem and aspiring to the reduction of the obstacle of sovereign immunity from execution, scholars and practitioners have put forward two practical solutions; firstly, a hybrid sovereignty act has been proposed; secondly, it has been suggested that the World Bank could take punitive action, refusing to provide the state party with further loans until the award is resolved. However, these proposals have, to date, not been practically applied or developed. This thesis has two primary objectives: firstly, it attempts to analyse previous solutions that have been addressed to the enforcement issue of ICSID awards: secondly, it addresses itself to two alternatives: 1) that the ICSID Administrative council can review compliance with awards; 2) that countermeasures can be initiated against the failing state under the law of state responsibility (the ILC Articles on State Responsibility). In concluding, the thesis will consider the various advantages and disadvantages associated with each of the aforementioned solutions, ultimately proposing an approach that is best-suited to upholding the interest of the victorious party at the enforcement stage.

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The settlement of petroleum expropriation disputes has been a challenging issue in the petroleum industry since the earliest cases. The issue, principally, relates to foreign investors' right to investment protection and the sovereign right of states, the clash of which causes such disputes. Striking a balance between these conflicting rights in order to save the disputants' relationship is a critical concern given the interdependent relationship of disputants which manifests itself in a cyclical manner. This in turn highlights the importance of finding a suitable dispute resolution method to reach the most appropriate and balanced resolution from both parties' viewpoint. Impartiality is, in this context, a key element when determining the most suitable method for resolving expropriation disputes. This is so considering that the reason for the abandonment of diplomatic protection and litigation as methods for resolving expropriation disputes was concerns over their partiality towards one of the disputants. Currently, with the proliferation of investment treaties, treaty-based arbitration has become the most popular method for resolving such disputes. However, the suitability of treaty-based arbitration is criticised as a process which is likely to be partial in favour of investors and their investment protection rights. Such a partiality is likely to be found in treaty-based arbitration's origin, substance and procedural aspects. Therefore, it can be argued that there is room for mediation as an alternative dispute resolution method to be adopted and supplemented arbitration for settlement of petroleum expropriation disputes. In fact, mediation enjoys various qualities which makes it especially attractive for such disputes, including its time and cost efficiency, its ability to explore win-win settlement options and to save the disputing parties' relationship, and the flexibility and collaborative nature of the process. More importantly, its self-determination principle is a feature which guarantees the impartiality of mediation. However, mediation, like other dispute resolution methods, is not without its disadvantages. It faces challenges with regard to its voluntary and non-binding nature, confidentiality, its inability to deal with the political overtones of petroleum expropriation disputes, its retarding effect on jurisprudence development and disputants' lack of familiarity with the process. Nonetheless, having proposed some solutions to these shortcomings, this thesis concludes that mediation should be used and encouraged more systematically for resolving petroleum expropriation disputes.

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No description available.

University of Technology, Sydney. Faculty of Law. / The paper examines the evolution of the recognition and enforcement of "foreign" arbitral awards prior to the introduction of the various international arbitration conventions by referring to court decisions of the relevant countries, primarily the United States and the United Kingdom. The scope and importance of the New York Convention will be canvassed, with specific reference to cases. The Dissertation traces the evolution of judicial and legislative attitudes towards arbitration (in particular, the issue of arbitrability), from the original position of antipathy towards arbitral processes, to the active promotion of arbitration and a "hands-off" approach to its processes by legislators as well as courts. The introduction of the arbitral process to developing countries will be discussed in the context of some recent controversial arbitrations in Indonesia and Pakistan. Public policy as the criterion for the enforcement of awards by national courts will be discussed and relevant authorities referred to. The reasoning adopted by courts in this area will be examined and discussed. The paradigm shift in the enforcement of awards and the leeway granted within the parameters of the arbitral decision making process will be highlighted by two case studies. Both demonstrate clearly the current negation of public policy considerations. The first is a decision of the English Court of Appeal which was mirrored by a subsequent arbitration awardin 'which the discarding of public policy considerations was particularly remarkable as constitutional issues were involved, which normally would have given rise to the expectation of deliberations as to the notions of public policy. NOTE CONCERNING "UNITED KINGDOM" AND "ENGLISH" LAW The title of the Dissertation inter alia refers to the " ... laws of ... the United Kingdom." Within the text, there are references to both the "United Kingdom" and "England." The constitutional and legislative position in the United Kingdom is perhaps more complex than in other jurisdictions and a brief outline is necessary. United Kingdom Parliament Parliament is called the "Parliament of the United Kingdom of Great Britain and Northern Ireland." (Great Britain is comprised of England, Scotland and Wales). The United Kingdom Parliament comprises the monarch, the House of Lords and the House of Commons. Until relatively recently, Parliament was regarded as the supreme law-making body within the United Kingdom; however, European Community law is now paramount within the United Kingdom's constitutional framework. The legislation of the United Kingdom Parliament is presumed to apply to the whole of the United Kingdom, although there can be an express or implied exclusion of a part of the United Kingdom from the operation of a particular Act. Legal systems England and Wales have the one legal system. As from the Sixteenth Century, "English law" has prevailed in Wales. Scotland has a distinct legal system and its own courts, with, in civil matters, rights of appeal to the Appellate Committee of the House of Lords. Northern Island also has its own courts, with rights of appeal to the House of Lords in both civil and criminal matters. Devolution The United Kingdom Parliament has legislated for the devolution of power to regional assemblies - to the Scottish Parliament, the Northern Island Assembly and the National Assembly for Wales. The Scottish Parliament has the power to pass primary legislation, subject to certain subject matters being reserved by the United Kingdom Parliament. The Northern Ireland Assembly also has power to enact primary legislation, but the Northern Ireland Assembly is also presently suspended. The National Assembly for Wales has no power to enact primary legislation - that power remains with the United Kingdom Parliament. Consequently, at present, the Scottish Parliament alone has power to pass legislation which has equal force to that of the United Kingdom Parliament. Dissertation In relation to the expressions used in the Dissertation; generally, references to legislation will be referred to as United Kingdom legislation, as Parliament is the United Kingdom Parliament. It should also be noted that it is the United Kingdom which is the contracting State to the New York Convention. References to decisions of the House of Lords and the Court of Appeal will be described as "United Kingdom" and "English" decisions respectively. As noted above, whilst each of Scotland and Northern Ireland has its own courts, there are rights (in the case of Scotland, in civil matters only). of appeal to the House of Lords. The House of Lords, consequently, hears appeals from the whole of the United Kingdom. The English Court of Appeal is the Court of Appeal for the unitary system of England and Wales. Given that "English law" was historically also the law of Wales, it is more appropriate to refer to decisions handed down by it as "English" decisions. Decisions of other Courts (such as Queen's Bench and Chancery) will also be referred to as "English" decisions.

A state contract is a common mode of entry for foreign direct investment, especially in developing states. It can form the legal basis of the investment relationship between a foreign investor and a host government. But, like any other contract, it cannot stand itself covering all aspects of the legal relationship. The contract thus must belong to a specific legal system or a body of rules or principles which is usually called “applicable law “or “governing law”.Historically, a “concession contract” in the natural resources sector was the predominant form of a state contract and it used to be governed by the domestic law of each host state. However, since the 1950s, international investment arbitrations have abandoned the tradition and advanced a theory subjecting state contracts in the foreign investment sector to an external legal system, ie public international law. One of the bases of the theory of internationalisation was the principle of party autonomy that allows parties to a state contract to select any law of whatever country they like. Then, the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention)1 formally adopted the principle of party autonomy in Article 42 (1) as the primary choice of law rule in disputes arising out a foreign investment contract concluded between a state and a national of another state.The object of this thesis is to prove that the fundamental problems of party autonomy in foreign investment contracts involving considerations of public and private law issues remain unsettled. It explores the main controversies and confusions in the theory of internationalising state contracts, looking at its historical context. It examines the extent of the application of party autonomy in state contracts such as natural resource exploitation contracts and construction of a plant and infrastructure contracts which reflect important economic development policies of developing countries.In considering past and current problems in the field of international investment law, the thesis argues that arbitral tribunals resolving disputes between a state and a foreign private individual should abandon the party autonomy approach because contractual freedom to choose the law of the contract would disregard the objectives which host states normally pursue through economic regulations such as development, environment and human rights concerns of foreign investment. It suggests a consensus-based approach similar to the rule adopted in the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities (Hague Securities Convention)2 and which would produce the desired effect. It recommends that the choice of law provisions found in Article 42 of ICSID Convention would need to be either modified or repealed. In doing so, this thesis attempts to contribute to the positive development of international investment law balancing state authority and private property rights.