Arbitration Beyond Borders : Essays in Memory of Guillermo Aguilar Álvarez.

Format:

Book

Author/Creator:

Reisman, Michael.

Contributor:

Blackaby, Nigel.

Language:

English

Subjects (All):

International commercial arbitration.

Dispute resolution (Law).

Physical Description:

1 online resource (644 pages)

Edition:

1st ed.

Place of Publication:

Bielefeld : Wolters Kluwer Law International, 2023.

Summary:

The influential vision and work of the late Guillermo Aguilar Álvarez, one of the world's leading arbitral innovators, have left the principles and practice of international arbitration with a rich legacy of insight and achievement. In this one-of-a-kind book, thirty-two prominent arbitrators and scholars consider the vital issues that concerned him and to which he often gave a new clarity.Each chapter addresses a cutting-edge issue of contemporary international arbitration, including the following:ethical standards for party representatives in international arbitrationresponsibilities of international arbitrators in the conduct of proceedingsalternatives to investment arbitrationcorruption and "red flags" in international arbitrationabuse of rights in restructuring to access investment protectionforeign investment disputes under the United States-Mexico-Canada Agreement 2020the illegality defense in investor-State arbitrationarbitration and insolvencystatus of annulled awards in investment arbitrationthe arbitration 'backlash'The collection addresses, in depth, some of the most pressing technical and political considerations facing international arbitration today. Its focus will enable arbitrators and all whose work involves them in the arbitral process, as well as academics in the field, to equip themselves to address critical issues as they arise during the conduct of any international commercial or investment arbitration.

Contents:

Intro

Half-Title Page

Title Page

Copyright Page

Editors

Contributors

Summary of Contents

Table of Contents

Preface

Chapter 1 International Commercial Arbitration and National Courts: Reflections on a Complex but Indispensable Relationship

I When National Courts Play a Role

II United States Courts' Struggle with Abuse by Foreign Courts

Chapter 2 Anatomy of a Case Dealing with (Negative and Positive) Recognition Claims of Awards: Some Considerations on Legitimate Interest and Linked Awards

I Introduction

II Presentation of the Case

III Lack of Legitimate Interest as a Basis to Oppose a Negative Recognition Claim

A Nature of Negative Recognition Claims: Merely Declaratory Claims

B The Concept of Legitimate Interest

C Grounds of the Argument Based on the Lack of Legitimate Interest of the Shareholders

D Decision of the Spanish Court on Legitimate Interest

IV Lack of Recognition of a Prior Linked Award as a Basis to Oppose a Positive Recognition Claim

A ACo's Counterclaim Seeking Recognition of the Award on Costs

B Decision on the Counterclaim

References

Chapter 3 The Evolution of the Illegality Defense in Investor-State Arbitration: An Interpretation

II First Phase: The Development of the Illegality Defense Along Two Axes

A The Temporal Jurisdictional Axis: From Fraport I (2007) to Metal-Tech (2013)

B The Claim Admissibility Axis

1 Contract Cases: From World Duty Free (2006) to the Niko Jurisdiction Decision (2013)

2 Treaty Cases: Inceysa (2006) and Plama (2008)

III Second Phase: Yukos (2014) as "Omega and Alpha"

A Yukos as Omega: The Intersection and Merger of the Two Axes

B Yukos as Alpha: The Emergence of Transitional Legal Tools

1 The Dilution of the Notion of "Making" of the Investment.

2 The Expansion of the Scope of Transnational Public Policy

3 The Development of Tools to Address Illegality as a Merits Issue

IV Third Phase: The Emergence of a Proportionality Framework?

V Conclusion

Chapter 4 Defining and Enforcing Ethical Standards for Party-Representatives in International Arbitration

I When Diversity Is Not Always Good

II Identifying Ethical Standards

A The Importance of Identifying Ethical Standards

B Existing Instruments

C The SIArb Guidelines on Party-Representative Ethics

III Making Ethical Standards Work

IV Conclusion

Chapter 5 The Reasons Requirement in State-State, Commercial and Investment Treaty Arbitration

II The Reasons Requirement in International Arbitration

A The Reasons Requirement in State-State Arbitration

B The Reasons Requirement in Investment Treaty Arbitration

C The Reasons Requirement in International Commercial Arbitration

III Annulling Awards on the Basis of Deficient or Absent Reasons

A The New York Convention

B ICSID

C State-State Arbitration

IV Absent or Deficient Reasons: A Jurisdictional Comparison

A Failure to State Reasons in United States Courts

B Failure to State Reasons in Mexican Courts

C Failure to State Reasons at ICSID

V Supplying or Supplanting Reasons: Can It Be Done?

VI Conclusions

Chapter 6 The Viability of the Alternatives to International Investment Law and Arbitration: International and Domestic Perspectives

II International Law Alternatives to the Current System of IILA

A Institutional Selection of Arbitrators

B Appeals Facility

C Codes of Conduct

D List System

E Diplomacy and ADR

F Standing International Investment Court(s)

III Domestic Law Alternatives

A Domestic Investment Laws

B SEZ Laws

C PPP Laws.

D Other Laws: The Broader Substantive and Dispute Resolution Framework

IV Assessing the Alternatives to International Investment Law and Arbitration

A An International Law Assessment

B A Domestic Law Assessment

Chapter 7 Is There a Latin American Arbitration?: The Myth and Beyond

II What Is Latin America?

III The Latin American Conferences and Treaties

IV The UNCITRAL Model Law: Following the Model?

V New Laws: Refocused Arbitration Centers

VI A Look Ahead

Chapter 8 Arbitration and Insolvency: Important Aspects for Tribunals to Consider

I Law Applicable to the Effects of Parallel Insolvency Proceedings on an International Arbitration

A The Delocalized International Arbitral Tribunal

B Arbitral Tribunals' "Duty" to Render an Enforceable Award

C No Universal Conflict of Law Rules Applicable to Insolvency and Arbitration

II Parallel Insolvency Proceedings in Practice

A Public Policy and Mandatory Rules in the Context of Insolvency

B Navigating Treacherous Waters

1 Legal Capacity and Representation of the Insolvent Party

2 Validity of the Arbitration Agreement

3 Stay of Proceedings

4 Scope of Award

5 Setoff

6 Security for Costs

III Conclusion

Chapter 9 The New NAFTA: Fulfilling Guillermo's Dream?

II The Hull and Calvo Doctrines: The Historical Context of the NAFTA Negotiations

III The NAFTA Negotiations: Guillermo's Vision

IV Original NAFTA: Rise of the Hull Doctrine

V The Effect of NAFTA: Mexican Joy, U.S. and Canadian Distress

VI Guillermo's Take on Host State Concerns

VII New NAFTA: The Ironic Return of the Calvo Doctrine

VIII Does the New NAFTA Meet Guillermo's Standards?

IX Conclusion

Chapter 10 Internal and External Factors Fashioning Arbitral Authority

II Internal Factors.

III The Arbitral Tribunal's Internal Chemistry: Dissenting Opinions

IV A Particular "External" Factor: Arbitrators' "Coercive Powers"?

V The Impact of Political and Ideological Factors on Arbitral Authority

Chapter 11 The Governance of Arbitral Institutions: How to Improve Standards Through Accreditation

I The Code of Best Practices of the Spanish Arbitration Club

II Enforcement of the Code

Chapter 12 Proving Corruption in International Arbitration: The Utility of "Red Flags"

I What Kind of "Corruption" Are Red Flags Utilized For?

II The Original Intent of "Red Flags" and Its Current Usage

III Red Flags in Practice: Some Recent Cases

A Metal-Tech v. Uzbekistan

B Niko Resources v. Bapex and Petrobangla

C Kim v. Uzbekistan

D Unión Fenosa Gas v. Egypt

Chapter 13 Consent to Arbitration Given Through Investment Treaties

I Consent to Arbitration Given Through Investment Treaties

A Nature and Effects of the State's Consent to Arbitration Given in Investment Treaties

1 The Lanco Decision

2 The Offer of Consent Given in Investment Treaties

3 Perfection of Consent

a Investor's Acceptance

b Date of Consent

c Legal Effects: Transfer of Investment Issues

B Scope of Consent to Arbitration. Impact of the Umbrella Clause

C Consent under an MFN Clause

D Interpretation of Consent to Arbitration

E Consent in Multiparty Arbitration

F Applicability of Consent in Investment Treaties Ratione Temporis

II Procedural Requirements and Limits to Consent to Arbitration Given in Investment Treaties

III Interaction Between Consent in Investment Treaties and Investment Agreements

IV New Issues Arising from Denunciation of Treaties and the ICSID Convention

V Concluding Remarks

Chapter 14 Legal Fictions in the Language of International Arbitration

I Introduction.

II Legal Fictions Aimed at Ensuring the Existence of International Arbitration

A Some Fictional Foundational Theories of International Arbitration

B The Fictional Assimilation of International Arbitrators to State Judges

C Legal Fictions Aimed at Ensuring the Autonomy of International Arbitration

III Legal Fictions Aimed at Ensuring Access to International Arbitration

A Legal Fictions Aimed at Creating Legal Rules So as to Ensure Access to International Arbitration

1 Legal Fictions Aimed at Creating Rules So as to Ensure Access to International Commercial Arbitration

2 Legal Fictions Aimed at Creating Rules So as to Ensure Access to Investment Arbitration

B Legal Fictions Aimed at Interpreting Legal Rules So as to Ensure Access to International Arbitration

IV Conclusions

Chapter 15 Law and Simplicity: The Art of the Samurai

II On Simplicity

III Simplicity in Arbitration and Judicial Adjudication

IV The Case of International Investment Law

V Conclusions

Chapter 16 Les contre-procès internationaux dans l'histoire judiciaire contemporaine

II Genèse des contre-procès d'opinion

III Le contre-procès de l'incendie du Reichstag

IV La Commission Dewey

V Le Tribunal Russell

VI Conclusion

Chapter 17 Abuse of Rights in Corporate Restructuring: An Unruly Horse in Investment Treaty Arbitration?

II Treaty Shopping

III Abuse of Rights Awakened

IV Theoretical Foundation of Abuse of Rights

V Abuse of Rights Unchained

VI Appraisal and Proposed Alternatives

VII Conclusion

Chapter 18 Policy-Oriented Analysis on Foreign Investment Disputes Within the USMCA Chapter 14: A Backlash on the Great Compact

I Principles of Content

II Principles of Procedure: Recalibrating the Mechanism

A Clarification of Goals

B Trend Description.

C Analysis of Conditioning Factors.

Notes:

Description based on publisher supplied metadata and other sources.

Part of the metadata in this record was created by AI, based on the text of the resource.

Other Format:

Print version: Reisman, Michael Arbitration Beyond Borders

ISBN:

9789403523811

OCLC:

1378393141