Despite the extensive literature regarding mediation, there remains very little empirical and objective research that gives regard to the characteristics of the Mediator as a neutral third party to a dispute. There is a substantial body of work that discusses the merits of mediation and the skills required to be a good or successful mediator. There are observational studies carried out on a small number of mediations mostly carried out by mediators who tend to see their role through a rather tinted world view. These neutrals hold a very peculiar position within the theatre of law, they have no definable regulatory body, no prerequisite for academic qualification and yet the majority of the work is carried out by a small number of individuals who by and large have been the 'leaders in the field' since they brought mediation to the forefront of dispute resolving as a protocol of the procedural rules. Utilising both self-reflection and psychometric models, 50 of the UKs leading commercial mediators submitted to a series of evaluative surveys to establish whether they had defining characteristics outside of the norm. Using the five factor model of personality (FFM) measured through the workplace test 'ORPHEUS', the subject group of 32 males and 18 females, were tested to establish whether there were any statistically significant traits. Across the five major and seven minor domains it was found that as a group the commercial mediators scored significantly lower than the mean along the major scale of Conformity, suggesting higher than average Creativity. The females group scored significantly lower across the domain in comparison to the males group. Within the minor trait scales, the group scored significantly higher than the mean across; Work Orientation, Fair-Mindedness and Initiative. However, the role is dominated by white, male lawyers of sixty-one years of age. They are Christian and have at a minimum undergraduate qualification in law, they will practice commercial mediation on a full-time basis and be accredited by at least one accrediting body, most notably CEDR. On average they will have practiced mediation for 20 years and carry out in excess of fifty-five mediations per year. They are mildly introverted creative types with higher than average initiative with a strong work ethic and a fair-minded approach.

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Inaug.--diss.--Würzburg. / "Literatur": p. 107-110.

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

Which State’s law should determine if a dispute is amenable to out-of-court settlement and consequently whether a dispute is arbitrable under Swedish law? Some legal scholars reason that general principles of private international law should solve the question as a conflict-of-laws issue, while others believe that Swedish mandatory law should apply directly. The Swedish Arbitration Act is unclear and both solutions find support in contradictory case law. It is thus not only debatable what the law should be, but also what it is. The Supreme Court recently had an opportunity to clarify this point of law (NJA 2012 s. 790), but left us with a ruling that is reminiscent of the words by the Swedish poet Esaias Tegnér (own translation): What you cannot say clearly, you do not know; with thought the word is conceived on the lips of man; words unclearly spoken are unclearly thought. This paper attempts to bring clarity to what the law is (de lege lata), as well as a proposition to what the law should be (de lege ferenda). The suggested solution aims to be consistent with a number of concepts. These include; the underlying rationale of non-arbitrability, the obligations under the New York Convention, general principles of private international law, international trends and Swedish law in general. First, it is held that non-arbitrability serves to protect the exclusive jurisdiction of the State’s own courts. There is therefore no need to investigate whether a dispute is amenable to out-of-court settlement, or apply the doctrine of non-arbitrability, in international disputes with little connection to Sweden. In these cases, there is no risk of collision with the exclusive jurisdiction of Swedish courts. Second, the requirement that disputes must be amenable to out-of-court-settlement should be interpreted in light of its context. No duty exists to consider foreign concepts under general principles of private international law. For this reason, and others presented in this paper, the question of whether the parties can settle their dispute by agreement should be examined under Swedish mandatory law. This should only be examined when there is a collision between the exclusive jurisdiction of Swedish courts and a tribunal. This solution is in line with the international trend of in favorem arbitrandum and the New York Convention. It is also the only practical solution since it would be unnecessarily complicated for Swedish courts to ex officio determine the content of foreign law. This would prolong the process and limit arbitration’s effectiveness.

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.

Santrauka Šiame darbe analizuojami arbitražo teisinės prigimties, arbitražinio susitarimo bei sprendimo esmė bei probleminiai klausimai, pateikiama užsienio arbitražų sprendimo pripažinimo procedūros ir užsienio arbitražų sprendimo nepripažinimo pagrindų problematika, tiriami užsienio arbitražų sprendimo pripažinimo ir apeliacijos (revizijos) panašumai, skirtumai bei tarpusavio santykis. Remiantis darbo eigoje atliktos analizės rezultatais, atskleidžiami Lietuvos bei pasirinktų užsienio valstybių užsienio arbitražų sprendimo pripažinimo teisinio reglamentavimo, teismų praktikos panašumai ir skirtumai, identifikuojamos problemos ir pateikiamas galimas jų sprendimas. Atskirų valstybių nacionalinių įstatymų užsienio arbitražų sprendimo pripažinimo klausimų reglamentavimo įvairovė bei nevieninga teismų praktika sąlygoja analizuojamų problemų gajumą. Daugiausia darbe analizuojamas 1958m Niujorko konvencijos ir Lietuvos komercinio arbitražo įstatymo nuostatų taikymas užsienio arbitražų sprendimo pripažinimo srityje. Vadovaujantis atlikta teisine analize, galima daryti išvadą, kad norint harmonizuoti užsienio arbitražų sprendimo pripažinimo reglamentavimą, reikalingas ne tik vieningas užsienio arbitražų sprendimo pripažinimo nuostatų aktas- Niujorko konvencija, bet ir ją įgyvendinantis, tarptautiniu lygiu priimtas, Niujorko konvencijos įgyvendinimo aktas, kuris leistų suvienodinti nacionalinius įstatymus ir sudarytų tinkamas sąlygas užsienio arbitražų sprendimo pripažinimo vieningai... [toliau žr. visą tekstą] / Summary The Recognition of Foreign Arbitral Awards and Relation with Appeal (Revision) This article analyses the nature of arbitrage, the essence of arbitral agreement and decision. The main issues presented are problematic points of recognition procedure and grounds of disclaimer of foreign arbitral awards. Furthermore, while using comparative method the aim of this article was to disclose and investigate similarities, differences and relations between foreign arbitral award recognition and appeal (revision). According to the results of the analysis, there were discovered similarities and differences of Lithuanian and selected foreign countries court rulings adopted in the cases of recognition of arbitral awards. Therefore, the appropriate problems were identified and possible solutions of recent regulation were offered. In Addition, the vitality of these problems are influenced due to variety of national regulations and disunity of judicial practice of every single foreign country. Analysis of the rules of the New York convention and The Law of commercial arbitration of Republic of Lithuania as well as application of them is the central topic of this article. Following the legal analysis of this article, it is concluded that the harmonizing purpose of recognition of foreign arbitral award regulations determines the New York convention cannot secure appropriate legal practice as international implementation and enactment of this convention is necessary due to harmonize... [to full text]

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.

Thesis (LL.M.). / Written for the Institute of Comparative Law. Title from title page of PDF (viewed 2008/07/28). Includes bibliographical references.