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.

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The practice of international trade is specific and evolves rapidly in accordance with its needs. Today arbitration constitutes the usual way to settle disputes of international commerce. However, certain rules of arbitration do not seem to be adapted with this practice. The written form of the arbitration agreement as required by, inter alia, the New York Convention and the UNCITRAL Model Law on International Commercial Arbitration is one of them. First this thesis presents the rules of these two instruments. Then international trade's practice is examined, and especially the incorporation of arbitration clauses by reference and the use of electronic means to conclude such clauses. There is a noteworthy discrepancy between the rules and reality of trade. / Having exposed the various difficulties, this thesis examines national laws and case law in order to determine whether they offer satisfactory solutions. Different interesting answers have been brought in Civil Law as well as Common Law countries. Yet they remain local and do not allow for harmonization worldwide. They even often vary one from another and are sometimes contradictory. / A more satisfactory solution could be found on the international level, and more specifically by the UNCITRAL. Indeed the Commission entrusted the Working Group II the mission of proposing a solution. A proposal of compromise has been drafted, namely, a revised article of the Model Law and an interpretative instrument of the New York Convention. This soft proposal is interesting but will perhaps not be able to settle all the problems related to the issue of the arbitration clause's form.

Confidentiality is unanimously recognized to be one of the most characteristic and attractive features of international commercial arbitration. The confidential character of arbitral proceedings has often been presumed on the basis of the privacy of the hearings, but this presumption has proven ill-founded in arbitrations between private and public actors ("mixed arbitration"). National courts and international tribunals have come to recognize and to enforce a public interest exception to confidentiality based on the principle that the public has a right to be informed of the contents and outcome of the arbitral proceedings whenever the subject-matter of the dispute is of public concern. This thesis will assess the basis upon which and the limits within which the public interest exception to confidentiality might operate. The thesis will then provide an analysis of the benefits—the accommodation of moral and legal expectations of public participation—and risks—the politicization of the arbitrated dispute and disclosure of trade secrets—of greater transparency and openness in mixed arbitral proceedings. The thesis will show that the public interest exception to confidentiality is a valuable and important development along the path of democratic governance, but also that, in order to avoid the indiscriminate disclosure of information, the precise range of its application needs to be carefully defined and limited to only those cases wherein it appears to be fully justified.

Thesis (LL. M.)--University of Toronto, 2005. / Includes bibliographical references (leaves 57-61).

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

Thesis (M.A.)--City University of Hong Kong, 2008. / Title from PDF t.p. (viewed on Oct. 3, 2008) "City University of Hong Kong, School of Law, LW 6409A Dissertation." Includes bibliographical references (p. 63-65)

Thesis (M.A.)--City University of Hong Kong, 2006. / "A dissertation paper undertaken in partial fulfillment of the Master of arts in arbitration and dispute resolution." Title from title screen (viewed on Sept. 20, 2006) Includes bibliographical references.