Article II of the New York Convention on Recognition and Enforcement of the Foreign Arbitral Awards is a central provision concerning recognition and enforcement of foreign <I>arbitration agreements. </I>It is deemed, however, to be one of the most controversial provisions of the Convention. The main cause of the complexity of this article is that Article II was thought about and added to the body of the Convention on Recognition and Enforcement of <I>Foreign Arbitral Awards </I>at the last stages of the New York Conference. The hasty insertion of Article II has left unsettled many legal questions concerning arbitration agreements. In the application of the New York Convention, Article II has given rise to many questions. In fact, a substantial number of all national courts decisions so far reported deals, either completely or in part, with questions concerning arbitration agreements under Article II. This thesis is an attempt to trace most legal implications concerning the application and interpretation of Article II of the New York Convention. Many problems are observed. Those problems include the failure of this Article to identify the arbitration agreements to which the Convention applies, the failure to determine the law applicable to arbitration agreements, and the broad ambiguous sweep of the language used in Article II in many occasions. This study is, therefore, devoted to identifying these problems, establishing their nature and extent and finding a satisfactory solution to them with relevant suggestions and proposals. In dealing with these problems a description and analysis of legislative and judicial practice on the subject in various countries which are parties to the Convention have been made. It is noted in many places of this thesis that Article II of the New York Convention like many provisions of most international conventions may represent a compromise and thus it may not be entirely satisfactory in every aspect it deals with. Article II's shortcomings could be, however, cured by the courts. Establishing a new convention on the subject could be a very difficult if not impossible task. In this regard, an observation has been made on the question of the extent to which national courts, by the so-called "interpretation", have been willing to promote harmonious rules in the field of international commercial arbitration, despite the shortcomings of Article II.

The arbitration clause is the clause by which the parties to a contract agree to submit the conflicts that may rise from their contractual relationship to an arbitral tribunal. A principle of autonomy is associated to this type of clause: on the one hand, the arbitration clause is separable from the main contract; on the other hand, it is independent from any state law. To a certain extent, one may even link this principle to other principles concerning the arbitration clause, such as the Kompetenz-Kompetenz principle. The question is to know whether special rules apply to the arbitration clause.

Thesis (Ph.D.)--Aberdeen University, 1998. / Title from web page (viewed on Mar. 22, 2010). Includes bibliographical references.

No description available.

Thesis (Ph.D.) - University of Queensland, 2005. / Includes bibliography.

University of Macau / Faculty of Law

Thesis (doctoral)--University of Linz, Austria, 1999.

In Europe of the Middle Ages, there existed an autonomous regime of truly private international business law based upon the customs and usages of merchants, the Law Merchant, administered in lay tribunals. The courts and legislators usurped the jurisdiction of the lay tribunals, and subverted the Law Merchant to municipal law. Arbitration was similarly subverted to municipal courts and strict legal controls. The courts continued to guard their jurisdiction jealously into the 20th century, when nations came to realize the inadequacy of national legal systems for international business problems, and the desire of business to escape parochial legal concerns and municipal courts. Canada adopted the New York Convention and UNCITRAL Model Law in 1986, which maximize party and arbitral autonomy and restrict court interference with arbitration. These new laws would permit the resurrection of an autonomous regime of international commercial dispute settlement largely divorced from national law and court controls, if the courts cooperate. This thesis is the first comprehensive, up-to-date study (of which I am aware) of Canadian case law on arbitration in the context of the history of autonomous commercial dispute resolution from the its zenith in the Middle Ages through its nadir, to its present attempted resurrection. This thesis shows that the courts of Canada continue to guard their jurisdiction jealously, finding the means in old notions and precedents to justify their refusal to cede jurisdiction to arbitrators. The courts have ignored the policies underlying the new laws, have failed to apply international precedents and standards, and have continued to apply notions and precedents from an era hostile to arbitration.

In 1995 the WTO began functioning as an institution that aims at reducing the trade barriers between countries. The Dispute Settlement Understanding (DSU) is one of the numerous agreements that bind the WTO Members. The agreement embodies a mechanism to solve disputes which presents many obstacles to Developing Countries. This thesis seeks to shed light on the difficulties that Developing Countries commonly face when attempting to put forward a trade complaint. Taking into account the factors that cause the problematic situation, proposals for improvement are also given. Special attention is paid to the current negotiations to reform the DSU in the context of the Doha Round.

A central feature of the World Trade Organization (WTO) is its Dispute Settlement Mechanism (DSM). Access to the DSM is presently limited to member governments; other entities such as NGOs are not eligible to be WTO Members and, consequently, are denied formal participation in the dispute settlement process. However, non-governmental entities have been afforded a limited opportunity to express their views through the submission of amicus briefs in dispute settlement proceedings. There are concerns, in particular on the part of Developing Countries, over the Appellate Body's authority to confer such a role to these entities. This paper aims to analyze the issues surrounding the status of non-governmental entities at the WTO level with respect to the DSM, how its Appellate Body is interpreting the law of the WTO, and how far the criticism of Developing Countries towards the Appellate Body's interpretation of WTO law is justified.