The Coming Crisis in the Global Adjudication System

Brower, Charles N.; Sharpe, Jeremy K.

doi:10.1093/arbitration/19.4.415

Cited by 18 publications

(6 citation statements)

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“…While it is true that international arbitrators must possess skills which are not linked to a specific legal system (sensitivity, proactivity and even-handedness), 104 the legal system of their home jurisdiction provides an important benchmark for the attitude with which they approach the conduct of any arbitration. The 10 core values and principles discussed above provide the framework for the legal background against which German arbitrators tend to approach procedural and substantive issues that may arise in international arbitration proceedings.…”

Section: Discussionmentioning

confidence: 99%

The International Arbitrator's Dilemma: Transnational Procedure versus Home Jurisdiction: A German Perspective

Berger

2009

Arbitration International

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Every international arbitrator is necessarily influenced by the core legal values of his home jurisdiction. These values relate to both the conduct of the proceedings and the decision-making on the merits. In both areas, international arbitration has developed its own best practice standards and transnational legal principles and rules. The arbitrator's task is to reconcile the manifold influences of his home jurisdiction with the transnationalized structures of international arbitral proceedings. This article examines these issues from the perspective of the German legal system.

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Section: Discussionmentioning

confidence: 99%

The International Arbitrator's Dilemma: Transnational Procedure versus Home Jurisdiction: A German Perspective

Berger

2009

Arbitration International

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“…The inconsistent government policies and commitments, along with instances of expropriations without adequate compensations can be cited as justification for the transnational arbitrations (Al-Saeed, 2002). The trend of supranational institutional arbitration for ISDS was on the rise since 1979 and increasingly providing a substitution for the domestic litigation for the purpose (Brower & Sharpe, 2003). The perceived partiality of host state court system is another factor for shift of paradigm from national to transnational adjudications.…”

Section: Pakistan's Affirmative Approach For Transnational Protectionismmentioning

confidence: 99%

Legal Framework of Foreign Investment in Pakistan: An Appraisal of Protectionist Approach

Khan¹

2020

PSSR

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“…The materialisation of such a risk is a fissure in the arbitration system and a crisis that has practical legal implications. 857 In this regard, Philippe Leboulanger rightly provided that "it is inadmissible to have contradicting decisions regarding interrelated disputes, as this may result in actual denial of justice. The splitting of complex disputes leaves the door open to inconsistent decisions and to injustice".…”

Section: Understandably Parties In Arbitration Proceedings Have Confmentioning

confidence: 99%

Abuse of Rights in International Arbitration

Far¹,

Mohsen²

2020

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In recent years, international arbitration has become plagued by different forms of substantive and procedural abuse. For example, we have witnessed a rise in cases where parties restructure their investments in an abusive manner by altering one of its features purely to gain access to ICSID arbitration. Similarly, the increasingly common practice of initiating parallel arbitral proceedings in order to maximise a party’s chances of success, and the possibility of inconsistent decisions pose a risk to standards of fairness. Abusive practices designed by parties to prejudice their opponents may undermine the fair resolution of disputes and frustrate the administration of arbitral justice. There are pre-existing tools and legal rules that can be utilised to prevent abuse. However, these tools are inherently rigid in their application and fail to remedy all forms of abuse. Abuse of Rights in International Arbitration introduces the principle of abuse of rights and considers its application as a general principle of law to prevent different forms of substantive and procedural abuse in international arbitration. The virtue of a single theory with a wide scope and an overarching premise is that it is a principle, which involves equity considerations, enjoys the flexibility of general principles of law, and can address different abusive behaviours. The author carefully examines the legal basis and core elements of abuse of rights and analyses the relevant case law to address how the principle may affect administration of arbitral justice. Arguing for the application of abuse of rights as a general principle of law, the author expertly examines how it could apply in both international commercial and investment arbitration to tackle procedural misconduct and different abusive practices.

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The Coming Crisis in the Global Adjudication System

Cited by 18 publications

References 0 publications

The International Arbitrator's Dilemma: Transnational Procedure versus Home Jurisdiction: A German Perspective

The International Arbitrator's Dilemma: Transnational Procedure versus Home Jurisdiction: A German Perspective

Legal Framework of Foreign Investment in Pakistan: An Appraisal of Protectionist Approach

Abuse of Rights in International Arbitration

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