Thesis (LLM)--Stellenbosch University, 2002 / ENGLISH ABSTRACT: Arbitration is widely regarded as an important alternative to litigation, particularly for international commercial disputes. However, concern currently exists that arbitration is becoming too slow and too expensive, partly through using procedures too similar to those in the courts. Effective arbitration requires suitable legislation, the support of the parties and their lawyers and appropriate initiatives from the arbitral tribunal. The UNCITRAL Model Law on International Commercial Arbitration of 1985 is the internationally accepted standard against which the quality of a nation's legislation for international commercial arbitration must be measured. A crucial aspect regarding suitable legislation is the role of the courts. This thesis is essentially concerned with steps which have been taken or need to be taken in Germany and South Africa to achieve effective arbitration. It commences with a brief overview of the sort of delaying tactics which are often encountered in international arbitration practice, including abuse of the court's powers of supervision and intervention. The reception in Germany and South Africa of the UNCITRAL Model Law is then discussed. In Germany it has been adopted for both domestic and international arbitration. The South African Law Commission has recommended its adoption in South Africa for international arbitration. The Law Commission has however recommended a new separate statute for domestic arbitration because of the perceived need for remedial measures to ensure improved arbitration procedures. The thesis then examines the effect of the court's powers on effective arbitration, particularly prior to the award. The current South African law is discussed as well as the changes proposed by the Law Commission in the context of domestic and international arbitration. The South African position is compared with that in Germany, both before and since the introduction of the UNCITRAL Model Law in 1998. After a general discussion of the powers of the court in the context of arbitration, two aspects are identified for special attention. The first is the power of the tribunal to rule on its own jurisdiction and the interaction between the powers of the court with those of the tribunal in this regard. The second concerns the granting of interim measures in the context of arbitration proceedings, with particular attention to security for costs. In certain circumstances, and depending on the applicable rules and legislation, it may be more appropriate for a party to seek such relief from the tribunal, whereas in slightly different circumstances it may be preferable to seek such relief from the court. Finally, steps are considered, which can usefully be taken by the arbitral tribunal itself to promote effective arbitration by using the flexibility of the process. The extent to which the tribunal is "master of its procedure" and thereby able to counter delaying tactics effectively is subject to the doctrine of party autonomy. Specific techniques for more effective arbitral procedures are suggested, namely a more interventionist approach, the use of preliminary meetings, imposing timetables, improving the hearing, the effective use of documentary evidence and discovery and finally the possibility of documents-only arbitration. / AFRIKAANSE OPSOMMING: Arbitrasie word wyd beskou as 'n belangrike alternatief tot litigasie, veral by internasionale handelsgeskille. Kommer bestaan egter tans dat arbitrasie te stadig en te duur word, gedeeltelik deur die gebruik van prosedures wat te veel met dié van die howe ooreenstem. Doeltreffende arbitrasie vereis geskikte wetgewing, die ondersteuning van die partye en hulle regsverteenwoordigers en toepaslike inisiatiewe deur die arbitrasietribunaal. Die "UNCITRAL Model Law on International Commercial Arbitration" van 1985 is die internasionaal aanvaarde standaard waarteen die gehalte van 'n land se wetgewing vir internasionale kommersiële arbitrasie gemeet moet word. 'n Kritieke oorweging by geskikte wetgewing is die rol van die howe. Hierdie tesis behandel die stappe wat in Duitsland en Suid-Afrika reeds geneem is of wat nog geneem moet word om doeltreffende arbitrasie te bewerkstellig. Dit begin met 'n kort oorsig oor die soort vertragingstaktiek wat dikwels in die internasionale arbitrasiepraktyk raakgeloop word, insluitende misbruik van die hof se bevoegdhede van toesighouding en inmenging. Die ontvangs van die "UNCITRAL Model Law" in Duitsland en Suid-Afrika word bespreek. Die wet is in Duitsland vir sowel binnelandse as internasionale arbitrasie ingevoer. Die Suid-Afrikaanse Regskommissie het sy invoering vir internasionale arbitrasie in Suid-Afrika aanbeveel. Die regskommissie het egter 'n nuwe afsonderlike wet vir binnelandse arbitrasie aanbeveel weens die gewaarde behoefte aan regstellende middele om verbeterde arbitrasieprosedures te verseker. Die tesis ondersoek daarna die uitwerking van die hof se bevoegdhede op doeltreffende arbitrasie, veral voor die arbitrasietoekenning. Die huidige Suid-Afrikaanse reg en die wysigings, wat deur die Regskommissie vir internasionale en binnelandse arbitrasie voorgestel word, word oorweeg. Die Suid-Afrikaanse posisie word met dié van Duitsland, voor en na die invoering van die "UNCITRAL Model Law" in 1998, vergelyk. Na 'n algemene bespreking van die hof se bevoegdhede in die samehang van arbitrasie word twee sake vir besondere aandag gekies. Die eerste is die bevoegdheid van die arbitrasietribunaal om oor sy eie jurisdiksie te beslis en die wisselwerking tussen die hof se bevoegdhede en dié van die arbitrasietribunaal in hierdie verband. Die tweede het betrekking op die toestaan van tussentydse regshulp in die samehang van arbitrasieverrigtinge, met besondere verwysing na sekuriteit vir koste. In besondere omstandighede, met inagneming van toepaslike reëls en wetgewing, behoort 'n party verkieslik sodanige regshulp by die arbitrasietribunaal aan te vra, terwyl in effens ander omstandighede behoort die partyeerder die hof te nader. Ten slotte word stappe oorweeg wat nuttig deur die arbitrasietribunaal self geneem kan word om doeltreffende arbitrasie aan te moedig deur die buigsaamheid van die arbitrasieproses te benut. Die mate waarin die tribunaal meester van sy prosedure is en daardeur vertragingstaktiek doeltreffend kan bekamp, is onderworpe aan die leerstuk van partyoutonomie. Bepaalde tegnieke word voorgestelom meer doeltreffende arbitrasieprosedures te bevorder, naamlik 'n meer intervensionistiese benadering, die gebruik van reëlingsvergaderings, die oplegging van 'n rooster vir die arbitrasie, verbetering van die verhoorproses, die doeltreffende gebruik van skriftelike getuienis en blootlegging en laastens die moontlikheid van arbitrasie slegs op dokumente.

Arbitration is the preferred method of dispute resolution in international trade. Naturally, a set of rules is necessary to govern the conflict&rsquo / s resolution. For cultural, political, economical or other reasons the parties&rsquo / national laws may not serve the individual interests and needs of that particular contract well. If one wants to avoid the application of both parties&rsquo / national laws, one can choose that the contract be governed by an a-national legal standard, e.g. general principles of International Trade Law or the general usages of a particular trade. These internationally accepted principles of law governing contractual relations are called lex mercatoria (law merchant).<br /> <br /> Lex mercatoria already existed in the Middle Ages and can even be dated back to antiquity. Later it disappeared through the nationalization of International Trade Law and was rediscovered in the 1950s, when international traders were again creating their own law and disputes were increasingly resolved outside of the national jurisdictions and applying a-national law. Lex mercatoria is being applied more and more by arbitrators and is therefore becoming increasingly important for dispute resolution in International Trade. Numerous different concepts and theories of lex mercatoria have been developed. Its being an autonomous legal system is questioned by some authors and the doctrine in favour of it called unfounded. The critics also argue that the authority to apply lex mercatoria may be a recipe for amateurism and the substitution of the arbitrator&rsquo / s private preferences for the parties&rsquo / intentions, for itis easy to proclaim common principles on the basis of limited knowledge. The lex mercatoria is said only to exist because scholars talk about it. However, these and other allegations can be refuted by critically analyzing the arguments that are supposed to underline those assumptions. Applying lex mercatoria to solve international trade disputes has many advantages. By choosing lex mercatoria the parties avoid rules which are unfit for international contracts, e.g. peculiar formalities, brief cut-off periods and special difficulties created by domestic laws. In addition to that, neither of the parties has the advantage of having the dispute governed by his own law. Since one of the central rules is the principle of good faith and fair dealing, lex mercatoria neither leads to arbitrary results nor does it favour the rich. Is it possible for the arbitrators to apply lex mercatoria if no law has been chosen by the parties? The failure of the parties to indicate a choice could well mean that they did not wish to have their contract governed by any of their national laws. In some awards arbitrators applied lex mercatoria as they considered the community of international merchants to be autonomous and to exist beyond national legislation. However, it cannot be deduced from the absence of such a choice that the parties have impliedly chosen lex mercatoria to be the law governing the conflict. Lex mercatoria is applicable only as a subsidiary law in cases where no national law has been chosen and seems apt.

The number of investor-state arbitration disputes has been on the rise since the mid 1990s. Their determinants are still not fully understood. This study empirically examines the effects of economic crises on investor-state arbitration claims, based on international investment agreements (IIAs). We use a unique dataset containing 961 investor-state arbitration claims covering 132 host (defendant) and 75 home (claimant) countries over the 1986-2017 period. We find that episodes of economic crises are positively and significantly associated with the number of investor-state arbitration cases and we uncover evidence that the type of economic crisis matters. In addition, the positive impact of economic crises on arbitration cases is inversely related to the rule of law in a host country. These results are consistent with the view that governments are prioritizing policy actions aiming at mitigating the negative impact of economic crises over compliance with their obligations in IIAs. From a policy perspective, our results suggest that besides strengthening the rule of law domestically, the IIA system should be reformed with a focus on avoiding a vicious circle, thus shortening the recovery period after economic crises. / Series: Department of Economics Working Paper Series

Dispute Settlement in International Economic Law - Selected Aspects Abstract At the time of the emergence of investor state arbitration, such regulation of states was seen as necessary to protect Western investors from expropriation of their investments by developing states, in which there was an absence of rule of law and the protections that flow from that. The ICSID Center was established primarily to ensure the availability of an assured impartial and independent dispute resolution service. The increase in the number of cases over the years, together with sometimes expansive, unexpected and inconsistent interpretations of International Investment Agreement provisions by tribunals, had triggered a worldwide debate and a number of countries had adopted reform measures. The EU has proposed a Permanent Investment Court to address criticism, aimed at investment arbitration and to be included as a measure under the TTIP. This concept has been also adopted in the CETA, and if successful, is likely to be adopted in other treaty agreements as the European Parliament has expressed a preference for the proposed investment court under the TTIP to be included in other free trade agreements. The concept of a permanent legal body providing public proceedings and decisions, establishing binding case law to address...

Thesis (Ph. D.)--Columbia University, 1930. / Vita. Published also without thesis note. Bibliography: p. 255-256.

Arbitration is the preferred method of dispute resolution in international trade. Naturally, a set of rules is necessary to govern the conflict&rsquo / s resolution. For cultural, political, economical or other reasons the parties&rsquo / national laws may not serve the individual interests and needs of that particular contract well. If one wants to avoid the application of both parties&rsquo / national laws, one can choose that the contract be governed by an a-national legal standard, e.g. general principles of International Trade Law or the general usages of a particular trade. These internationally accepted principles of law governing contractual relations are called lex mercatoria (law merchant).<br /> <br /> Lex mercatoria already existed in the Middle Ages and can even be dated back to antiquity. Later it disappeared through the nationalization of International Trade Law and was rediscovered in the 1950s, when international traders were again creating their own law and disputes were increasingly resolved outside of the national jurisdictions and applying a-national law. Lex mercatoria is being applied more and more by arbitrators and is therefore becoming increasingly important for dispute resolution in International Trade. Numerous different concepts and theories of lex mercatoria have been developed. Its being an autonomous legal system is questioned by some authors and the doctrine in favour of it called unfounded. The critics also argue that the authority to apply lex mercatoria may be a recipe for amateurism and the substitution of the arbitrator&rsquo / s private preferences for the parties&rsquo / intentions, for itis easy to proclaim common principles on the basis of limited knowledge. The lex mercatoria is said only to exist because scholars talk about it. However, these and other allegations can be refuted by critically analyzing the arguments that are supposed to underline those assumptions. Applying lex mercatoria to solve international trade disputes has many advantages. By choosing lex mercatoria the parties avoid rules which are unfit for international contracts, e.g. peculiar formalities, brief cut-off periods and special difficulties created by domestic laws. In addition to that, neither of the parties has the advantage of having the dispute governed by his own law. Since one of the central rules is the principle of good faith and fair dealing, lex mercatoria neither leads to arbitrary results nor does it favour the rich. Is it possible for the arbitrators to apply lex mercatoria if no law has been chosen by the parties? The failure of the parties to indicate a choice could well mean that they did not wish to have their contract governed by any of their national laws. In some awards arbitrators applied lex mercatoria as they considered the community of international merchants to be autonomous and to exist beyond national legislation. However, it cannot be deduced from the absence of such a choice that the parties have impliedly chosen lex mercatoria to be the law governing the conflict. Lex mercatoria is applicable only as a subsidiary law in cases where no national law has been chosen and seems apt.

Die Rechtswissenschaftliche Fakultät der Christian-Albrechts-Universität zu Kiel hat diese Arbeit im Jahre 2006 als Dissertation angenommen. / Includes bibliographical references and index.

Thesis (M.A.)--Marquette University, 2009. / Lowel Barrington, Lawrence Leblanc, Andrea Schneider, Advisors.

v angličtině: International commercial arbitration is a type of arbitration that is on the rise. It should be in the interest of every state to provide favourable conditions for holding an international commercial arbitration on its territory. It brings not only international recognition and improves competitiveness and; the holding of an arbitration on a territory of a given states also brings new financial resources. One of the ways how to provide favourable conditions is the adoption of the UNCITRAL Model Law. Above all, it brings legal certainty and easy orientation to foreign entities that are not familiar with national arbitration laws. The adoption of the UNCITRAL Model Law by the Czech Republic would be a step towards more favourable conditions for international commercial arbitration and would bring the aforementioned advantages.

This thesis examines the law on international commercial arbitration in England, Japan and Russia with a view to identify those areas for which harmonisation is of the greatest practical importance. This study is a timely one, since the Arbitration Act 1996 came into effect on 1st January 1997 in England. In Japan, the Committee of Arbitration formed by Japanese experts on arbitration prepared the Draft Text of the Law of Arbitration in 1989, and preparation for amendment based on the UNCITRAL Model Law is under way. In Russia, the Law on International Commercial Arbitration was established based on the UNCITRAL Model Law on 7th July 1993. A comparative study is made of the rules of international private law relating to arbitration, especially issues on international jurisdiction. Despite of recent development of unification of law on arbitration such as the 1958 New York Convention and the UNCITRAL Model Law, there are few rules in this area. This study goes some way towards filling this gap in the legal framework. The classification of an arbitration agreement and its influences upon international private law and law on arbitration are also considered. The issue of classification has been argued by many commentators usually to attempt to clarify the general characteristics of arbitration. However, it is the classification of an arbitration agreement that has practical significance. The classification of an arbitration agreement affects, directly or indirectly, not only the international private law but also law on arbitration. Its effects extend to the law applicable to an arbitration agreement, the law applicable to the capacity of a person to enter into an arbitration agreement, the principle of separability of an arbitration agreement, assignment of an arbitration agreement, the principle of Kompetentz-Kompetentz, and the stay of court proceedings on the basis of the existence of an arbitration agreement. Finally, this comparative study is used as a basis to put forward models for harmonisation in the interpretation of law on arbitration.