UNCITRAL Arbitration Rules and their application in practice The purpose of the thesis is to analyse the UNCITRAL Arbitration Rules and the ways they are applied and interpreted by parties of dispute and arbitrators in international commercial arbitration. The thesis is divided into two parts. In the fist part the basic principles and legal framework of international commercial arbitration are described. Differences between institutional arbitration and ad hoc arbitration are discussed and special chapters are dedicated to permanent arbitration courts in the Czech Republic and important international arbitration institutions. Second part begins by discussion of the UNCITRAL Commission history and describes historical development of the UNCITRAL Arbitration Rules. Analysis of individual articles follows. With some articles there is established common international practice regarding their application or interpretation in international commercial arbitration. In such cases these practices and interpretations are discussed in more detail. Some articles of the revised 2010 version of the UNCITRAL Arbitration Rules are significantly different compared to the 1976 version of the UNCITRAL Arbitration Rules. These differences are analysed comparatively. Legal-analytical, legal-descriptive and legal-...

Set-off is meant to be one of the most important defences in arbitration proceedings. About 15 - 20 per cent of all international arbitrations involve set-off defence. There is not much dispute about the possibility to virtually extinguish mutual claims of the parties however national concepts of set-off differ dramatically. Moreover, in contrast to most other legal mechanisms set-off is always formed by no less than two obligations. These obligations may be regarded differently and be subject to different laws which can lead to a series of difficult questions regarding not only choice-of-law but also judicial competence. The centrum of the controversy lays in the situation when the defendant raises his cross-claim, which falls outside the scope of an arbitration agreement, to be mutually offset. Arbitrators can be in a very difficult position as they have to find, in the absence of any clear rule, reasonable limits of the adjudication of set-off. This work aims to find out what should be the limits of the adjudication of set-off with the cross-claim over which the tribunal normally wouldn't be competent to decide. There is offered a legal framework with a set of good practices which should be followed in order to strengthen legal certainty, procedural efficiency and effective functioning of...

Due to the globalization processes , international trade has increased dramatically, resulting in growing number of disputes between companies from different countries. Effective and convenient way both to prevent and solve the conflicts is international arbitration. But if failing party does not voluntarily accomplish the award, the other side must apply for a special international procedure - recognition and enforcement of the award. The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 is the main international treaty to instruct the process of enforcement of arbitral awards and arbitral awards may be refused only under certain grounds laid down in the Convention. This paper is mainly focused on the award enforcement procedure in one of the biggest commercial markets of the world - China. According to the previous research, enforcement procedure in China has improved recently, however it still can not meet international standards. In this paper we examine the procedure of enforcement first, moving from the available form of arbitration and process of choosing arbitration rules to behavior of the state as a part in the process. Then we introduce the article V of United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, as a most important document for practical implementation of enforcement. In order to understand current situation in China, author thinks it is necessary to make a short review of historical development of arbitral award enforcement system and legal basis relevant to the main purpose of this research. Finally, we analyze the present legal situation in China within the mechanism of recognition and enforcement of arbitral awards and show what kind of problems exist when it comes to practical realization of enforcement in China. Our analysis shows that the main problems with practical enforcement in China include: local protectionism and different understanding of the definition and purpose of Public Policy. These problems are also illustrated by practical cases, which happened between Chinese and international companies. Our conclusion shows that mentioned problems are not connected with international mechanism of arbitral awards, but with the complications of its implementation in China. Some of the problems can be solved if involving party prepares thoroughly for the process, but some of them can be solved if central and local government of China stops maintaining its policy of local protectionism.

Šiame magistro baigiamajame darbe analizuojamos valstybės kaip ginčo šalies tarptautiniame komerciniame arbitraže lemiamos teorinės ir praktinės problemos tiriant tarptautinio komercinio arbitražo, arbitražo šalių bei valstybės kaip ginčo šalies tarptautiniame komerciniame arbitraže sampratas. Taip pat analizuojamas galimas įpareigojimų sukūrimas, arbitražinio susitarimo nesudariusioms šalims, valstybės imuniteto tarptautiniame komerciniame arbitraže klausimai bei kiti arbitražo proceso, kuomet viena ginčo šalių - valstybė - ypatumai. Be to, paskutinėje šio magistro baigiamojo darbo dalyje analizuojama Lietuvos Respublikos, kaip ginčo šalies tarptautiniame komerciniame arbitraže, patirtis. / Firstly, in this master thesis the concepts of international commercial arbitration, parties of the arbitration and a state as a party to a dispute in international commercial arbitration are analysed. The analysis of the concept of international commercial arbitration shows that in author’s opinion the concept of international commercial arbitration determined in the Law of Commercial Arbitration of the Republic of Lithuania should be revised. Also the conclusion should be done that the problem of the content of the ‘state’ concept is existing in both – practical and theoretical levels. As the practice regarding this question is not well-established, after the analysis of the existing theories the application of the mixed theory of the concept of the ‘state’ is suggested. Moreover in this master thesis the possibility to bind the non-signatories to arbitration agreement and questions of the immunity of a state in international commercial arbitration are analysed. Those institutes are raising a number of practical problems as on the one hand the threat to bind the non-signatory of the arbitration agreement arises and on another hand the possibility that the award of the arbitral tribunal will not be recognized and/or enforced exists. It is suggested to solve both problems by including special terms into the agreement by which the arbitration agreement is concluded with a state – i. e. it is suggested for the parties clearly to indicate in the agreement the persons that shall... [to full text]

Commercial arbitration is growing in importance in the modern world. People often use arbitration to ensure adjudication by an expert in the field and although arbitration may not always be quicker, its importance continues to grow especially in international commercial disputes.1 Effective arbitration procedures will have positive consequences for the economical and political relationships between countries.2 The Arbitration Act 42 of 1965 might have sufficed in the past, but as international commercial arbitration is ever increasing and changing, this act has become out–dated. It does not effectively facilitate international commercial arbitration. The Act was primarily designed with domestic commercial arbitration in mind and therefore it is of limited assistance in the international commercial arbitration sphere. The United Nations Commission on International Trade Law3 has developed the Model Law on International Commercial Arbitration.4 This Model Law or variations thereof can be adopted by a country to regulate international commercial arbitration.5 Many countries choose to adopt the Model Law. The reasons vary but some are that the country’s own arbitration laws were out–dated and needed replacement. The Model Law has proved to be effective and it has become a benchmark for good arbitration legislation.6 Some countries have even adopted the Model Law for use in domestic commercial arbitration disputes. The South African Law Commission7 published a report in 1998 dealing with the possible application of the Model Law on international commercial arbitration in South Africa. It drafted a Draft Bill on International Arbitration (not as of yet promulgated) based on the Model Law.9 One of the points of discussion in the report of the Commission was whether the Model Law should also be made applicable to domestic commercial arbitration in South Africa. The conclusion was that domestic and international arbitration should be dealt with separately and that the present Act regulating domestic arbitration should be amended but not replaced by the Model Law. This implies two arbitration regimes: the International Arbitration Act (dealing only with international commercial arbitration); and the Arbitration Act (dealing only with domestic commercial arbitration) After the Commission’s report had been studied and South Africa’s legal position had been compared with Australia’s legal position, it is conlcuded that Australia is a good example to follow in regard to arbitration practices. It is, however, important to keep South Africa’s own background in mind. A good point made by Australia, is the fact that international commercial arbitration legislation and domestic commercial arbitration legislation, should be kept separate. This will bring about effectiveness and clarity for the users of the said legislation. Furthermore, as end conclusion, the Commission’s view is not favoured in regard to the fact that South Africa’s domestic arbitration legislation should not be based on the UNCITRAL Model Law. It would be a good idea to follow suit with Australia and base both South Africa’s international and domestic commercial arbitration legislation on the UNCITRAL Model Law. / Thesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2011.

Commercial arbitration is growing in importance in the modern world. People often use arbitration to ensure adjudication by an expert in the field and although arbitration may not always be quicker, its importance continues to grow especially in international commercial disputes.1 Effective arbitration procedures will have positive consequences for the economical and political relationships between countries.2 The Arbitration Act 42 of 1965 might have sufficed in the past, but as international commercial arbitration is ever increasing and changing, this act has become out–dated. It does not effectively facilitate international commercial arbitration. The Act was primarily designed with domestic commercial arbitration in mind and therefore it is of limited assistance in the international commercial arbitration sphere. The United Nations Commission on International Trade Law3 has developed the Model Law on International Commercial Arbitration.4 This Model Law or variations thereof can be adopted by a country to regulate international commercial arbitration.5 Many countries choose to adopt the Model Law. The reasons vary but some are that the country’s own arbitration laws were out–dated and needed replacement. The Model Law has proved to be effective and it has become a benchmark for good arbitration legislation.6 Some countries have even adopted the Model Law for use in domestic commercial arbitration disputes. The South African Law Commission7 published a report in 1998 dealing with the possible application of the Model Law on international commercial arbitration in South Africa. It drafted a Draft Bill on International Arbitration (not as of yet promulgated) based on the Model Law.9 One of the points of discussion in the report of the Commission was whether the Model Law should also be made applicable to domestic commercial arbitration in South Africa. The conclusion was that domestic and international arbitration should be dealt with separately and that the present Act regulating domestic arbitration should be amended but not replaced by the Model Law. This implies two arbitration regimes: the International Arbitration Act (dealing only with international commercial arbitration); and the Arbitration Act (dealing only with domestic commercial arbitration) After the Commission’s report had been studied and South Africa’s legal position had been compared with Australia’s legal position, it is conlcuded that Australia is a good example to follow in regard to arbitration practices. It is, however, important to keep South Africa’s own background in mind. A good point made by Australia, is the fact that international commercial arbitration legislation and domestic commercial arbitration legislation, should be kept separate. This will bring about effectiveness and clarity for the users of the said legislation. Furthermore, as end conclusion, the Commission’s view is not favoured in regard to the fact that South Africa’s domestic arbitration legislation should not be based on the UNCITRAL Model Law. It would be a good idea to follow suit with Australia and base both South Africa’s international and domestic commercial arbitration legislation on the UNCITRAL Model Law. / Thesis (LL.M. (Import and Export Law))--North-West University, Potchefstroom Campus, 2011.

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.

LL.M. (International Commercial Law) / Please refer to full text to view abstract

Third-party funding (TPF) has grown to be a popular phenomenon in the past two decades with a large global market (billions of USD). This success came with new complications regarding conflicts of interest that threaten the impartiality and independence of arbitrators who may have common-interests with funders. Disclosure of funding has been proposed as a solution and ordered in many cases. However, it was not always approached in systematic ways. Similar TPF cases may have inconsistent decisions. The thesis tackles disclosure in arbitrations to arrive to conclusions on whether it is needed, if all funding-information should be disclosed, and if legal-bases grant tribunals the powers to order such disclosures.  Disclosure opponents raise several objections, which are discussed in the thesis. One objection touches upon the root of many problems namely, TPF definitions. Opponents argue that available-definitions do not circumscribe many funding-models i.e., they are biased against an array of investors that should not be considered as funders. Due to the muddy waters that tribunals have been walking to decide issues on TPF-disclosure, there are inclinations to regulate disclosure. Lately, two national-legislations that include disclosure-regulations have been enforced in Hong Kong and Singapore. Few arbitral-institutions have addressed TPF disclosure (inter alia 2021 ICC Arbitration Rules). In jurisdictions and institutions without such regulations and rules, the soft-law IBA-Guidelines on Conflicts of Interest in International Arbitration have been used but with different interpretations depending on arbitrators’ views and case-circumstances. The respective definitions do not address modern economic-realities in secondary-markets of claims. This causes dilemmas in deciding if investors in such markets are considered as funders per se. The thesis assesses TPF-disclosure in international commercial arbitration and analyses its applications in primary and secondary markets. The aim is to draw the attention to disclosure challenges in both markets, propound recommendations, and show that solving such challenges calls for: (i) revising existent-definitions to accommodate evolving funding-models, (ii) differentiating between disclosure-requirements in primary and secondary markets, and (iii) regulating TPF of arbitrations. One result is a proposed definition for ‘TPF of arbitration’ that encompasses unattended issues in existent-definitions. Other results show the need for mandatory-disclosure of funders’ identities (leaving funding-arrangements to tribunals on a case-by-case basis). Such results help to strike a balance between avoiding conflicts of interests and funders’ non-disclosure interests i.e., balancing between TPF transparency and confidentiality.

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.