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Convention ny 1958 arbitrage betting

However, the limited usage of arbitration in Islamic history has been extended nowadays to include the arbitrability of all financial and economic issues, as Islam is a flexible evolutionary system that allows national legal systems of ICs to evolve and adapt to different and new circumstances. These matters must mandatorily be referred to national courts, whereas all other matters relating to financial and commercial disputes are arbitrable.

This clause shall however be deemed written. Practically, the arbitration clause participates positively in reducing the jurisdictional uncertainty, and in view of this functionality its future effect should not be used as a reason for its invalidity. Based on this interpretation and at the practical level, the validity of arbitration clause should not be contested by Islamic jurisdiction as long as its concept does not legitimize prohibited things or forbids those which are permitted.

Under the principle of separability of an arbitration clause, its validity can be recognized independently of the underlying contract in which it is contained. According to the Islamic jurisprudence a void clause does not lead to the voidance of the underlying contract unless it is the principal motivation for concluding this contract.

The disputing parties have full liberty to appoint their arbitrators either directly or by reference to a third party. The issue is entirely left to the disputing parties to appoint one or more arbitrators provided their number to be uneven.

Regarding the qualification of the appointed arbitrators, 77 the Islamic jurisprudence requires for them the same qualification as for judges. The question is raised in this regard about the validity of appointment of a non-Muslim or a woman as an arbitrator. Current Islamic jurisprudence allows Muslims to trade and do business in non-Muslim countries and to appoint a non-Muslim arbitrator to resolve the relevant dispute. In KSA, while the canceled Arbitration Law of was preventing the appointment of women arbitrators, the new arbitration Law of is silent on gender and religion of the appointed arbitrators.

This silence should open the door before the appointment of women arbitrators. This court has supervisory authority to check only the formal matters, including the existence of an arbitration agreement, the validity of constitution of arbitration committee, without exceeding that to the review of the merits of the dispute or the reasoning of arbitrators.

Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: b The recognition or enforcement of the award would be contrary to the public policy of that country. In fact, the ratification of the NYAC by most ICs have largely contributed in increasing the enforcement of foreign arbitral awards by their jurisdictions. This right is also given to the appointed arbitrator whenever he is entrusted that by the parties.

As such, the western arbitrators seem to ignore the general rule of pacta sunt servanda. The analysis of major cases provides us with a complete comprehension of their effects on the development of arbitration legislations in the ICs and justify the evolvement of their attitude towards commercial arbitration system from disfavoring it to embracing its practices.

In the s, several oil concessions arbitration cases have negatively affected the development of international arbitration systems the ICs. However, the Libyan government refused to participate in the subsequent proceedings. The arbitrators in the three relevant cases have denied the application of the Libyan local laws, which is considered a primitive law in a developing country and its application may affect negatively the required legal environment for the development of arbitration in international commercial relations.

As a result, The Libyan government lost its three arbitral cases and ultimately reached to settlements with the different parties. For illustration, in the case of the holding pharmaceutical company of Bangladesh Beximco Ltd.

According to the Standard No. In addition, a guarantee given by a party acting as an agent in respect of an investment, turns the transaction into an interest-based loan since the capital of the investment is guaranteed in addition to the proceeds of the investment i. It may also be defined in terms of an amount of income to be known in the future, as when remuneration is linked to an indicator that may be quoted at the beginnings of different intervals of time.

However, it is not permissible to leave remuneration for agency undetermined and allow the agent to take an unspecified share from the entitlements of principal. Similar reasoning was followed in the case Bank Islam Malaysia Berhard where the bank bought according to a Bai Bithaman Ajil BBA agreement a property to sell it to one of its customers at an agreed price including a profit margin, which must be paid by the customer by periodic instalments. The primary perception of this transaction is that it is simply an interest disguised as a sale.

It argued that the customer had to pay the total agreed sale price as this agreement is a real sale agreement and not an interest-based loan agreement. It held that: the bank must grant a rebate and such a rebate shall be the amount of unearned profit as practiced by Islamic banks […] The legal documentation used by Islamic banks should have addressed the peculiarity of the Islamic banking transaction, instead of adopting a cut and paste approach of the conventional banking documents.

Likewise, in the case involving Sanghi Polyesters Ltd vs. As a result, throughout this period of time, many ICs have manifested its hostility and distrust of international arbitration and jurisdiction as favoring the western interests. The international commercial law model recognized that the contracting parties can apply non-national system of law to their contract by mutual agreement to arbitrate their dispute governed by this system.

The Rome I Regulation on the Law Applicable to Contractual Obligations adopted by the EU in , removed indirectly the limitation stipulated in the Convention of Rome of with respect to the exclusion of application of a non-state law. In Musawi v. International UK Ltd. In Al Midani v. In Kuwait v. In Aminoil v. Kuwait case of , after nationalization of the Kuwaiti oil sector by the government in and subsequently the termination of the Aminoil oil concession agreement, the two parties referred to an ad hoc arbitration.

It applied this law to the substantive issue and gave the right to Kuwait to terminate Aminoil concession agreement against payment of fair compensation to Aminoil for its long-term benefits of this concession. Onassis a right of priority for the transport maritime of Saudi Arabian oil for thirty years. The focal issue in this dispute was the conflict between the right of priority given to Mr.

Onassis and the concession agreement with Aramco, which gave it the exclusive right to transport the oil extracted from its concession area in Saudi Arabia. It is difficult to admit that these Agreements should be characterized as laws under the legal system of Saudi Arabia. Reference may be made here to the Fundamental Instructions of the Kingdom of the Hijaz of 31 August , corresponding to 21 Safar where it is provided in Article 5 that: All the Administration of the Kingdom of the Hijaz belongs to H.

Thus, the arbitrators were confronted with two concessions agreement concluded by the government of Saudi Arabia with Aramco for the first agreement in , and the second one was granted to Mr. Onassis in Based on the ratification of these two agreements, an attempt was made to consider them as a law that governs the relationship between the government and the two companies.

The government stressed the principle of sovereignty of the state party to the concessions in international public law and contended a restrictive interpretation of these agreement as one of its parties is a state. The arbitrators held that these arguments are not supported by Islamic law, which drew no distinction between private contracts, public contracts or treaties.

These instruments have the same validity since principle of pacta sunt servanda is recognized by the Islamic law. Therefore, the arbitrators found that these agreements:. Furthermore, the Onassis agreement does not lay down norms of a general and impersonal application, but it establishes an individual situation to the advantage of Mr. Onassis and the companies he represents. This legal principle is commonly accepted in the Islamic law and in other legal systems. It applies to all kinds of legal relationships, whether in the public or the private law.

Hence, in a dispute arose between an American construction company and an Algerian state company with respect to an infrastructure agreement to build a railway in Algeria, the American company submitted an arbitration request to the ICC to settle this dispute claiming that the Algerian company did not fulfil its contractual obligations. The tribunal chose to apply the Algerian law to both the arbitration procedures and substantive matter, since the execution of agreement and the seat of arbitration was in Algeria.

The court did not take this rejection into consideration as the Articles 2 and of the same Code allow the payment of interest in case of compensatory damages. Legislative provisions shall be applicable to all matters dealt therein, in letter and context. In presence of an absolutely unambiguous text, there is no room for personal interpretation.

The lack of uniformity could be illustrated within these schools by different examples, such as whether an arbitral award is enforceable. Similarly, there is no unanimous agreement regarding the arbitrability objective of different types of disputes, even in some type of financial transactions.

Historically, the legislative policy inherited by the legal systems of the ICs throughout various periods was complex and rich of features. With the introduction of the French Civil Code — established under Napoleonic rule in — into the legislative of the Arab countries, their legal systems were consisted of two types of rules of Islamic and French origin. This code opened the door for the modern reform of the Arab countries legal systems.

This method of ICs is related somewhat to the diversity of opinions and multiplication of solutions provided by these boards according to the Islamic school adopted by the relevant country. On the other hand, the decisions of the Islamic supervisory boards are not binding to the courts in the jurisdictions of ICs, except for Malaysia where the courts are becoming bound by these decisions by virtue of the amendment of Central Bank Act of The organization is supported by several Islamic financial institutions, law firms, accounting and auditing offices from over 45 ICs.

IIRA stresses the point that fairness, good faith and transparency are substantial pillars of Islamic finance industry. Through its training and workshops, IIRA aims to promote a deep understanding of the concepts of Islamic transactions in existing and new markets.

Therefore, the i-arbitration rules created a good opportunity to Malaysia to become a hub for Islamic transactions disputes resolutions. If any dispute arising between the parties out of the formation, performance, interpretation, nullification, termination or invalidation of this agreement contract or arising therefore or related thereto, the dispute shall be referred to an arbitration panel constituted from uneven [group] of arbitrators for a final and binding decision in accordance with the rules and procedures specified in the statute of the International Islamic Center for Reconciliation and Arbitration in Dubai.

Therefore, the well-drafted procedures make IICRA one of the best supporting infrastructure organizations for the Islamic trade and transactions across the world. The establishment of such council helps in overseeing the Islamic business entities. Therefore, in international commercial arbitration, the contracting parties have a total autonomy to designate the applicable law on their contract.

The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute […] Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable. The tribunal shall in all cases take into account the usages of the trade applicable to the transaction.

The parties shall be free to agree upon the rules of law to be applied by the arbitral tribunal to the merits of the dispute. In the absence of any such agreement, the arbitral tribunal shall apply the rules of law which it determines to be appropriate. The arbitral tribunal shall take account of the provisions of the contract, if any, between the parties and of any relevant trade usages.

This approach has been adopted by the Saudi Royal Decree , which is a model for Islamic arbitration. Therefore, Article 38 thereof provide that:. Apply to the subject matter of the dispute rules agreed upon by the arbitration parties. If they agree on applying the law of a given country, then the substantive rules of that country shall apply, excluding rules relating to conflict of laws, unless agreed otherwise.

If the arbitration parties fail to agree on the statutory rules applicable to the subject matter of the dispute, the arbitration tribunal shall apply the substantive rules of the law it deems most connected to the subject matter of the dispute.

When deciding the dispute, the arbitration tribunal shall take into account the terms of the contract subject of the dispute, prevailing customs and practices applicable to the transaction as well as previous dealings between the two parties. The organization of these elements, including the procedural rules, the appointment of arbitration, the designation of the seat and language of arbitration were left to the free autonomy of the disputant parties. This legal principle is universally accepted, whether in Islamic or positive laws.

The ratification of the NYCA of by the majority of ICs over the past few decades has largely contributed to increasing the recognition and enforcement of foreign arbitral awards by the jurisdictions of these states. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that […] the recognition or enforcement of the award would be contrary to the public policy of that country.

With regard to the controversy surrounding Investor-State Arbitration , van den Berg was named as a member of an elite group of 15 arbitrators who handle most investment treaty arbitral proceedings in a report by NGO Corporate Europe Observatory. Professor Van den Berg never issues dissenting opinions and opposes their use by party-appointed arbitrators in investor-State arbitration. Within that perspective, one cannot attribute the decision of an entire tribunal to one member.

From Wikipedia, the free encyclopedia. Hidden categories: Webarchive template wayback links. Namespaces Article Talk. Views Read Edit View history.

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It may also declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.

The term "agreement in writing" shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.

To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply:. If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language.

The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:.

Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:. If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V 1 e , the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.

The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive any interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. The Geneva Protocol on Arbitration Clauses of and the Geneva Convention on the Execution of Foreign Arbitral Awards of shall cease to have effect between Contracting States on their becoming bound and to the extent that they become bound, by this Convention.

This Convention shall be open until 31 December for signature on behalf of any Member of the United Nations and also on behalf of any other State which is or hereafter becomes a member of any specialized agency of the United Nations, or which is or hereafter becomes a party to the Statute of the International Court of Justice, or any other State to which an invitation has been addressed by the General Assembly of the United Nations. This Convention shall be ratified and the instrument of ratification shall be deposited with the Secretary-General of the United Nations.

Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible.

Such a declaration shall take effect when the Convention enters into force for the State concerned. At any time thereafter any such extension shall be made by notification addressed to the Secretary-General of the United Nations and shall take effect as from the ninetieth day after the day of receipt by the Secretary-General of the United Nations of this notification, or as from the date of entry into force of the Convention for the State concerned, whichever is the later.

With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession, each State concerned shall consider the possibility of taking the necessary steps in order to extend the application of this Convention to such territories, subject, where necessary for constitutional reasons, to the consent of the Governments of such territories.

In the case of a federal or non-unitary State, the following provisions shall apply:. This Convention shall come into force on the ninetieth day following the date of deposit of the third instrument of ratification or accession. The Convention has also been extended to a number of British Crown Dependencies , Overseas Territories , Overseas departments , Unincorporated Territories and other subsidiary territories of sovereign states.

Under American law, the recognition of foreign arbitral awards is governed by chapter 2 of the Federal Arbitration Act , which incorporates the New York Convention. In Foster v. Neilson , the Supreme Court held "Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself without the aid of any legislative provision.

With specific regard to the New York Convention, at least one court discussed, but ultimately avoided, the issue of whether the treaty is self-executing. The court nonetheless held that the Convention was, at the least, an implemented non-self-executing treaty that still had legal force as a treaty as distinguished from an Act of Congress.

From Wikipedia, the free encyclopedia. Redirected from New York Convention Long name:. Retrieved 21 March McLaughlin and Laurie Genevro". Archived from the original on 20 June Retrieved 14 May CMS Legal. Retrieved 21 May Neilson, 27 U. See also Valentine v. Neidecker, 57 S. Dretke, S. Oregon, S. Certain Underwriters at Lloyd's, London , F. Hidden categories: CS1 errors: missing periodical CS1 maint: archived copy as title Articles with short description Short description matches Wikidata Use dmy dates from December Pages using collapsible list with both background and text-align in titlestyle.

Namespaces Article Talk. Views Read Edit View history. Help Learn to edit Community portal Recent changes Upload file. Download as PDF Printable version. Parties to the convention. New York City , United States. Secretary-General of the United Nations. Wikisource has original text related to this article: Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Antigua and Barbuda. Bosnia and Herzegovina. Burkina Faso. Cape Verde. Central African Republic. People's Republic of China. Democratic Republic of the Congo. Costa Rica. Cook Islands. Czech Republic. Dominican Republic. El Salvador. Holy See. Iran , Islamic Republic of. South Korea. Republic of Macedonia.

Marshall Islands. New Zealand. Papua New Guinea. Saint Vincent and the Grenadines. San Marino. Sao Tome and Principe. Saudi Arabia. Sierra Leone. South Africa. Sri Lanka. Trinidad and Tobago. United Arab Emirates.

Arbitration is becoming a preferred method of resolving cross-border disputes.

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Gal s sports betting uganda management However, p2000 coach class csgo betting virtually convention ny 1958 arbitrage betting major economies are now party to the New York Convention, problems can still arise when enforcing and executing awards. Not only can a lack of clarity waste time and incur costs for clients, but in a worst case scenario it can work to undermine the very rights that they have specifically negotiated in their agreements — for example, where an arbitration award cannot readily be enforced in a particular jurisdiction. These changes are the product of longstanding efforts at the ICC. This position lead various states in the region to reject the reference to international arbitration in their commercial agreements as western and unfair. It argued that the customer had to pay the total agreed sale price as this agreement is a real sale agreement and not an interest-based loan agreement.
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Thirty-three UN member states have not yet adopted the Convention. In addition, Taiwan has not been permitted to adopt the Convention but generally enforces foreign arbitration judgments and a number of British Overseas Territories have not had the Convention extended to them by Order in Council. The Convention has also been extended to a number of British Crown Dependencies , Overseas Territories , Overseas departments , Unincorporated Territories and other subsidiary territories of sovereign states.

Under American law, the recognition of foreign arbitral awards is governed by chapter 2 of the Federal Arbitration Act , which incorporates the New York Convention. In Foster v. Neilson , the Supreme Court held "Our constitution declares a treaty to be the law of the land.

It is, consequently, to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself without the aid of any legislative provision. With specific regard to the New York Convention, at least one court discussed, but ultimately avoided, the issue of whether the treaty is self-executing.

The court nonetheless held that the Convention was, at the least, an implemented non-self-executing treaty that still had legal force as a treaty as distinguished from an Act of Congress. From Wikipedia, the free encyclopedia. Redirected from New York Convention Long name:. Retrieved 21 March McLaughlin and Laurie Genevro". Archived from the original on 20 June Retrieved 14 May CMS Legal. Retrieved 21 May Neilson, 27 U.

See also Valentine v. Neidecker, 57 S. Dretke, S. Oregon, S. Certain Underwriters at Lloyd's, London , F. Hidden categories: CS1 errors: missing periodical CS1 maint: archived copy as title Articles with short description Short description matches Wikidata Use dmy dates from December Pages using collapsible list with both background and text-align in titlestyle. Namespaces Article Talk. Views Read Edit View history. Help Learn to edit Community portal Recent changes Upload file.

Download as PDF Printable version. Parties to the convention. New York City , United States. Secretary-General of the United Nations. Wikisource has original text related to this article: Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Antigua and Barbuda. Bosnia and Herzegovina. Burkina Faso. Cape Verde. Central African Republic. People's Republic of China. Democratic Republic of the Congo.

Costa Rica. Cook Islands. Czech Republic. Dominican Republic. El Salvador. Holy See. Iran , Islamic Republic of. South Korea. Republic of Macedonia. Marshall Islands. New Zealand. Papua New Guinea. Saint Vincent and the Grenadines. San Marino. Sao Tome and Principe. Saudi Arabia. Sierra Leone. South Africa. Sri Lanka. The Website. Update search. Search history. Annette Scholten. External Resource External Resource. Hassan Raza. Sahil Tagotra ; Ishita Mishra.

Pierre Tercier. Worldcat : Laura Weiller. Articles on the recognition and enforcement of arbitral awards in specific countries and regions including book chapters. Maxi Scherer. Guilherme Santos Silva. Brian McGarry. Berk Demirkol. Zena Prodromou. Bernard Hanotiau. Raul Pereira Fleury. Maria Jose Castellanos Ruiz. Ishita Mishra.

James Graham. General arbitration books addressing the New York Convention. Karen Seif ; Daniel Aranki. United Arab Emirates. Ed Richards. United Kingdom.

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And this expertise will lead to a more informed decision by the arbitral tribunal, and will save time and costs as the tribunal will not need to be educated by the parties as to the complexity of the issues in dispute. Colbridge: There are several important factors which may influence the parties in their choice of arbitration. The first is enforceability.

Because of the New York Convention to which some countries are now a party, arbitral awards are often more readily enforceable than court judgments. Another important factor is the neutrality of the forum. Parties in different jurisdictions may be cautious about getting involved in litigation in the local courts of their adversary, especially where, for example, the other party is a state owned or controlled entity. The courts in some jurisdictions may simply not be so used to dealing with the types of dispute that are likely to arise for particular parties and they may therefore have more confidence entrusting any eventual dispute to arbitrators whom they perceive to have an expertise in that area.

The opportunity for each party to choose an arbitrator also provides some comfort that the tribunal will be composed of members who are well equipped to deal with the dispute at hand. Other considerations include the fact that arbitration proceedings are generally private and the proceedings are more likely to remain confidential than they are with litigation, as well as the fact that arbitral decisions are generally not subject to review on appeal.

Luycks: One of the main advantages of arbitration over litigation is that arbitral awards are internationally recognised and are relatively easy to enforce due to the large number of parties to the New York Convention. Another important factor is the possibility for the parties to decide on the composition of the panel and select impartial and knowledgeable persons. In technically complex, high profile cases, parties may want to ensure that the appropriate experts and best arbitrators sit on the panel.

Although confidentiality is often regarded an important factor in choosing arbitration, there is no universal requirement of confidentiality and, depending on the applicable laws and arbitration rules, parties are advised to enter into a confidentiality agreement.

Chalk: Contracting parties may choose arbitration over litigation for a variety of reasons; one of the key drivers is often the international recognition of arbitral awards. The traditional view has been that arbitral awards enjoy much greater international recognition than judgements of national courts and, although there are small signs that this is changing, this remains generally the case, and can be attributed mainly to the success of the New York Convention regime.

All these reasons point to the perceived key benefits of the arbitration process and have also been cited in surveys which have been carried out on arbitration users. Litt: It probably is no surprise that many parties choose international arbitration in part for reasons that have little to do with the arbitration process, and a lot to do with the courts. A well-drafted arbitration clause is intended to give businesses assurance that they will have a qualified, neutral tribunal to resolve their disputes and avoid litigation in hostile or unreliable jurisdictions.

Arbitration also promises an award that is difficult to challenge in court and is more likely to be enforced in many countries than a foreign court judgment, thanks to widely-adopted treaties on the enforcement of foreign arbitral awards. These factors are as important today as they have ever been. Many parties also seek decision makers with commercial experience and a confidential process and, in some instances, arbitration can be cheaper and more expedient than complex international litigation.

In your opinion, how will the new rules affect international arbitration processes going forward? What are the benefits and drawbacks of the revised framework? In what ways do the new ICC rules address multi-party and multi-contract arbitrations, for example?

Colbridge: The new rules will undoubtedly have a positive impact overall in terms of streamlining the process for arbitrating certain disputes, particularly with regard to the express provisions for joinder of additional parties, claims between multiple parties, multiple contracts and consolidation of arbitrations.

The changes are a recognition of the fact that modern commercial relationships may not be, and are often not, exclusively based around a single agreement between two contracting parties. It remains to be seen quite how significant all of the changes will be in practice vis a vis the majority of ICC arbitrations that take place, given that it is still not possible to compel a third party to join arbitration proceedings if that third party is not also a party to the arbitration agreement.

Luycks: The new ICC rules contain provisions that can make procedures more time and cost efficient. Both the tribunal and the parties are made responsible for the cost effective and expeditious conduct. The tribunal first convenes a case management conference to set realistic deadlines for the submission of statements. In its decision on costs the arbitral tribunal may take into account the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner.

This may be an incentive for parties to refrain from adopting delaying tactics. The new ICC rules contain several provisions to facilitate complex arbitrations — for example, multi-party or multi-contract arbitrations. Claims regarding more than one contract may be submitted in a single arbitration. Requests for joinder of a party must be filed before appointment of the arbitrators. In a multi-party arbitration, claims may be brought against any other party provided that jurisdiction is established prima facie.

Chalk: Under the previous version of the ICC Rules, concerns were sometimes raised by certain users over the cost and efficiency of arbitral proceedings, and it was said that ICC proceedings could be disproportionately expensive for certain types of disputes. There was also criticism that the rules lacked adequate provisions to deal with complex arbitrations involving multiple parties or contracts, which are an increasingly common feature of complex contracts today.

To their credit, the ICC has very carefully listened to these comments and has introduced a number of new provisions to address these concerns. Provisions to cater for emergency arbitrators, joinder and consolidation, and various enhanced measures to promote cost and time efficiency have all been introduced.

It is still too early to tell if these changes will achieve their full desired effect, but there is no doubt that they are a welcome improvement to the ICC regime. Litt: The changes in the ICC rules that will appeal most to many arbitration consumers are the new provisions aimed at reigning in the costs of arbitration and the time it takes to get to a final award. These changes are the product of longstanding efforts at the ICC.

Ultimately, the conduct of the individuals involved in each case will still have the greatest impact on time and costs, but these rules can help motivated counsel and arbitrators press for efficiency. Venegas: The ICC is one of the most respected arbitration institutions in the world and its new rules will undoubtedly have an impact on international arbitration practice.

The rules were drafted by a committee of 20 members, who worked for nearly three years. The new rules encompass a variety of amendments to the rules, particularly relating to the prima facie jurisdictional analysis of the case; the availability requirement of the arbitrators; the constitution of the arbitral tribunal; and the conduct of the proceedings, principally with regard to efficiency, means of communication and case management.

The amendments also concern the emergency arbitrator, who would rule on urgent interim relief required prior to the constitution of the tribunal; the circumstances surrounding disputes involving states; and multi-party and multi-contract arbitration. On this last point, the rules expressly allow the joinder of an additional party, regulate multiple claims by multiple parties in one single proceeding, and confer broader powers to the court to consolidate proceedings under specific circumstances.

There is no question that these new rules are sophisticated and will allow for more efficient and speedy proceedings. FW: How important is the commercial and legal expertise of the arbitrator to the success of the process? What can parties do to ensure the right individual is appointed? Luycks: Legal disputes frequently have commercial aspects and implications, so in any arbitration it is necessary that the arbitrators grasp the commercial background of the dispute and the commercial consequences of an order or decision.

In order to ensure the right individual is appointed as arbitrator, in the arbitration agreement parties can refer to an appointment procedure that gives them a say in who is appointed as arbitrator or include their own mechanism for appointing an arbitrator. Depending on the type of contract and disputes that may arise from it, parties may wish to include specific qualifications that arbitrators need to have, but they should avoid making these requirements too specific as this may make it difficult to find suitable arbitrators.

Chalk: To ensure an efficient and successful arbitration, it is essential for an arbitrator to have a combination of both solid commercial experience, legal acumen and familiarity with the arbitration process. Arbitrators in international arbitrations should also be able to demonstrate cultural empathy when dealing with different, and sometimes conflicting, cultures.

In my view, the best guide for clients to the selection of arbitrators is to ask your own legal counsel who — if they are sufficiently experienced with arbitrations — should be familiar with which arbitrators are most suitable in each situation and which arbitrators will be able to devote the necessary time to the matter at hand. Litt: If you are trying to pick the right arbitrator for your case, the first thing you need to do is to know your case.

A party that is looking for a clear, confident application of the law of the contract should consider appointing someone with expertise in that law. If the case revolves around industry custom and usage, an arbitrator with industry experience may be the best bet. If a party has concerns about discovery, it may help to appoint someone who is experienced in a legal tradition that is attuned to those concerns.

You cannot make those decisions, of course, unless you have meaningfully evaluated your case and developed an arbitration strategy at the earliest stages of the process. Venegas: Arbitration is a complex proceeding that, if handled improperly, can lead to a vacated award and therefore, to the pointless expenditure of economic resources and time.

Parties should appoint arbitrators with experience in handling arbitration disputes. Arbitration practitioners with vast experience as counsel can make excellent arbitrators — they are very well equipped to prevent procedural complexities, and very familiar with the application of notions of burden and standard of proof.

Parties should seek advice from experienced counsel when deciding who to choose as their arbitrator. The appointment is crucial to their case, and many factors should be weighed, such as experience on the case issues, legal background, reasoning in previous publicly available awards or commentary, how busy the candidate is, and so on. Colbridge: The parties will generally be keen to ensure that the arbitrators have sufficient technical expertise to deal with the arbitration at hand, whether that is in terms of a particular area of law or type of dispute, the law of a particular jurisdiction relevant to the dispute, or even a particular industry.

The parties may also be keen to keep the arbitration in line with their expectations of domestic litigation in their respective jurisdictions. For example, a party from a civil law jurisdiction may seek to appoint an arbitrator with a background in civil law, and, vice versa, a party from a common law background.

The differences in approach between common and civil law jurisdictions can have a significant impact on arbitral procedure. FW: Under what circumstances should parties consider bringing expert witnesses into the process? How can they contribute to case analysis and even settlement discussions?

Chalk: Expert opinions are necessary where the dispute involves highly technical or specialised issues, including complex points of foreign law. However, an expert may also be requested jointly by the parties, or by the tribunal, to clarify difficult issues. Consideration of whether or not to use and present expert evidence should begin at the very earliest stages of the arbitration process. However, experts can help facilitate the settlement process, by quantifying a claim, and setting, for example, the upper and lower boundaries of a claim, which can then be negotiated and agreed by the parties.

A word of caution however: expert evidence can be very expensive and of variable quality. Litt: If the case raises a highly technical issue or a question of particular industry usage or custom, expert input can be essential both for early case evaluation and planning, and for the ultimate presentation of the case to the tribunal. However, parties and counsel should be wary of using experts when they are not really necessary. They can add significantly to the time and costs of a case and irritate some arbitrators, who may have little patience for experts who merely restate the evidence or trade in conclusions that can be reached with ordinary intelligence.

Experienced arbitrators also are familiar with common theories of damages and may react badly to experts who advocate overly creative theories. Venegas: The use of expert witnesses is required whenever the understanding of a technical issue in a case directly or indirectly determines the scope of the contractual obligations of the parties, and this technical issue is one that tribunal members find difficult to grapple. In this respect, parties should engage experts that are not only highly knowledgeable and respected in their field, but that also have the ability to transmit their ideas in an orderly fashion, and in a convincing manner.

Expert witnesses are usually called to the hearing and interrogated by opposing counsel and the tribunal members about their analysis and findings. In this respect, the character of the expert is also important, as she should have the personality to publicly defend her position, especially if confronted with the expert appointed by the other party. Colbridge: Parties are likely to have recourse to experts when there are technical questions that need to be resolved in a dispute and about which there is scope for some disagreement.

Experts can sometimes also be used for the purposes of settlement by, for example, narrowing down the issues in dispute or by quantifying a claim, so that the parties can enter into settlement negotiations. Luycks: Where technical or legal questions are at issue and the arbitrators lack the expertise necessary to answer these key questions in order to resolve a conflict, expert witnesses can be of great assistance.

They can shed light on causes and effects of defects, value of shares, legal questions in particular areas of the law, and more. Hearing the expert witnesses presented by both sides in confrontation can be extremely helpful to reveal their actual differences as to the specific issue and for the arbitrators to quickly get to the crux of the dispute.

Alternatively, parties should consider jointly appointing an expert or having the tribunal appoint an expert to avoid excessive costs. Where technical rather than legal questions are at the heart of a dispute, binding expert determination can be a cost and time effective alternative to arbitration and lead to a fruitful settlement.

FW: What advice would you give to parties on how to control their arbitration costs? Litt: A well-drafted arbitration clause is a key to avoiding protracted gateway disputes about jurisdiction, which can eat up lots of time and money without moving you any closer to a substantive resolution of the dispute. Arbitrator selection also can have a big impact on costs.

Look for arbitrators with a proactive case management style, who have the time, confidence and commitment to move a case forward. Finally, hire experienced counsel who understand your goals and are committed to pushing the case forward quickly and efficiently.

Counsel fees generally are the largest driver of costs, and counsel that is experienced in the forum and type of dispute can help you streamline the process and avoid unnecessary expenditures. If your lawyers and the arbitrators are committed to controlling time and costs, you are off to a good start. Venegas: The majority of costs in arbitration proceedings are incurred in counsel fees.

A statistical analysis published by the ICC in showed that 82 percent of the total costs in arbitration are incurred by the parties in presenting their cases. Therefore, our main advice is to hire experienced arbitration counsel, but with reasonable hourly fees or under a reasonable fixed budget.

Parties should expand their possibilities and seek counsel other than US and UK based arbitration firms, as many firms in other jurisdictions have similar or more experience, and their fees tend to be considerably lower. In other words, parties should pay attention to the experience of the counsel they intend to engage vis a vis their fees, seek three or four alternatives, compare them, and make an informed decision when electing their counsel.

Colbridge: Once the arbitration process is initiated many of the associated costs will, unfortunately, be unavoidable. Disclosure, for example, is an area that can often involve significant expense for a client. Once the arbitration process has commenced it is important to have an agreed procedure that will regulate how such matters as disclosure are to take place. Other unavoidable expenses include the fees of the arbitrators and any institution that is administering the proceedings.

At the time of contract drafting — before a dispute has arisen — the parties could give consideration to whether they want particular disputes dealt with in a particular way. It may be appropriate to refer certain disputes to expert determination instead of arbitration. It may also make sense to have a split liability and quantum hearing.

That way if the claimant is unsuccessful at the liability stage, the parties do not need to incur the costs of determining quantum, which very often includes instructing experts. Luycks: Rather than immediately initiating arbitral proceedings, parties should consider alternative mechanisms for dispute resolution such as mediation or conciliation, which have generally high success rates and are cheaper than a full fledged arbitration.

These mechanisms are a good alternative to arbitration if parties continue to do business together. In arbitration, costs can be saved by selecting counsel with time and the relevant expertise, selecting a sole arbitrator for straightforward questions, keeping procedures simple by agreeing the procedural rules beforehand and well-defining the dispute in the terms of reference. The key to effective proceedings is a tribunal that is skilled in case management.

Such a tribunal will adhere to a tight timeframe and avoid duplication, extensive discovery procedures, unnecessary submissions or witness or expert hearings. Using a single language for the arbitration, limiting physical meetings and making effective use of IT and teleconferencing can further help to limit costs. Chalk: I have noticed in recent years that clients have placed a much greater emphasis on resolving disputes earlier and on controlling the cost and time spent on arbitrations.

Experienced clients are taking an increasingly active role in the management of arbitrations, ensuring that disputes are not escalated prematurely, and where proceedings are necessary, to ensure that we are fully involved in their strategic thinking and in their commercial decision making process. Parties should continually review their costs position as the arbitration progresses and weigh this against their objectives and settlement opportunities.

This will invariably change in the course of an arbitration and it is important to keep this under review and to appreciate that many variables will come into play over the lifetime of an arbitration which may affect the initial analysis. FW: What additional challenges tend to arise in arbitrations when the disputing parties are resident in different jurisdictions, compared to domestic cases?

How can these obstacles be overcome? Venegas: If parties come from jurisdictions where a different language is spoken, the most obvious challenge is with respect to the language of the proceedings. Therefore, it is always useful to determine in the arbitration clause what the language of the proceeding should be.

A second challenge may arise where parties come from jurisdictions with a different legal culture, for example, when a dispute arises between a company based in a common law country and a company based in a civil law country. There are many things that are done differently in each jurisdiction.

For instance, while preparing witnesses is a practice that is condemned in Mexico, it is most appropriate in the UK. Further, witness examination techniques tend to vary a lot in each jurisdiction, and disagreements between counsel are not unusual during hearings. Colbridge: One major challenge can be language since there may be documents in various jurisdictions which need to be translated, adding significantly cost to the proceedings.

Interpreters may therefore be required at hearings. I have seen many arbitration proceedings conducted in more than one language, with each party submitting their brief in different languages. There may be other practical matters such as document retention which are affected by the way a client organises itself internally within its own jurisdiction.

There can be fairly big differences in litigation culture — for example, a US party may have different expectations about the disclosure process compared with a German party. These matters are generally resolved at a procedural hearing where the procedure for the arbitration is agreed and fixed. Luycks: Where parties come from different countries and cultures, such different backgrounds will be reflected in the tribunal and legal representatives handling the case.

Parties from different legal backgrounds — common law vs. Trade usages from one country, to be taken into account by the arbitral tribunal, may vary from those of another country. Also, problems in communication may arise. Selecting counsel that has international experience is essential in these types of cases. Furthermore, agreeing to the application of the IBA Rules on the Taking of Evidence may avoid unwelcome surprises and manage expectations as to procedural issues and evidence.

In Aminoil v. Kuwait case of , after nationalization of the Kuwaiti oil sector by the government in and subsequently the termination of the Aminoil oil concession agreement, the two parties referred to an ad hoc arbitration. It applied this law to the substantive issue and gave the right to Kuwait to terminate Aminoil concession agreement against payment of fair compensation to Aminoil for its long-term benefits of this concession.

Onassis a right of priority for the transport maritime of Saudi Arabian oil for thirty years. The focal issue in this dispute was the conflict between the right of priority given to Mr. Onassis and the concession agreement with Aramco, which gave it the exclusive right to transport the oil extracted from its concession area in Saudi Arabia.

It is difficult to admit that these Agreements should be characterized as laws under the legal system of Saudi Arabia. Reference may be made here to the Fundamental Instructions of the Kingdom of the Hijaz of 31 August , corresponding to 21 Safar where it is provided in Article 5 that: All the Administration of the Kingdom of the Hijaz belongs to H.

Thus, the arbitrators were confronted with two concessions agreement concluded by the government of Saudi Arabia with Aramco for the first agreement in , and the second one was granted to Mr. Onassis in Based on the ratification of these two agreements, an attempt was made to consider them as a law that governs the relationship between the government and the two companies. The government stressed the principle of sovereignty of the state party to the concessions in international public law and contended a restrictive interpretation of these agreement as one of its parties is a state.

The arbitrators held that these arguments are not supported by Islamic law, which drew no distinction between private contracts, public contracts or treaties. These instruments have the same validity since principle of pacta sunt servanda is recognized by the Islamic law. Therefore, the arbitrators found that these agreements:. Furthermore, the Onassis agreement does not lay down norms of a general and impersonal application, but it establishes an individual situation to the advantage of Mr.

Onassis and the companies he represents. This legal principle is commonly accepted in the Islamic law and in other legal systems. It applies to all kinds of legal relationships, whether in the public or the private law.

Hence, in a dispute arose between an American construction company and an Algerian state company with respect to an infrastructure agreement to build a railway in Algeria, the American company submitted an arbitration request to the ICC to settle this dispute claiming that the Algerian company did not fulfil its contractual obligations. The tribunal chose to apply the Algerian law to both the arbitration procedures and substantive matter, since the execution of agreement and the seat of arbitration was in Algeria.

The court did not take this rejection into consideration as the Articles 2 and of the same Code allow the payment of interest in case of compensatory damages. Legislative provisions shall be applicable to all matters dealt therein, in letter and context. In presence of an absolutely unambiguous text, there is no room for personal interpretation. The lack of uniformity could be illustrated within these schools by different examples, such as whether an arbitral award is enforceable. Similarly, there is no unanimous agreement regarding the arbitrability objective of different types of disputes, even in some type of financial transactions.

Historically, the legislative policy inherited by the legal systems of the ICs throughout various periods was complex and rich of features. With the introduction of the French Civil Code — established under Napoleonic rule in — into the legislative of the Arab countries, their legal systems were consisted of two types of rules of Islamic and French origin.

This code opened the door for the modern reform of the Arab countries legal systems. This method of ICs is related somewhat to the diversity of opinions and multiplication of solutions provided by these boards according to the Islamic school adopted by the relevant country.

On the other hand, the decisions of the Islamic supervisory boards are not binding to the courts in the jurisdictions of ICs, except for Malaysia where the courts are becoming bound by these decisions by virtue of the amendment of Central Bank Act of The organization is supported by several Islamic financial institutions, law firms, accounting and auditing offices from over 45 ICs.

IIRA stresses the point that fairness, good faith and transparency are substantial pillars of Islamic finance industry. Through its training and workshops, IIRA aims to promote a deep understanding of the concepts of Islamic transactions in existing and new markets. Therefore, the i-arbitration rules created a good opportunity to Malaysia to become a hub for Islamic transactions disputes resolutions.

If any dispute arising between the parties out of the formation, performance, interpretation, nullification, termination or invalidation of this agreement contract or arising therefore or related thereto, the dispute shall be referred to an arbitration panel constituted from uneven [group] of arbitrators for a final and binding decision in accordance with the rules and procedures specified in the statute of the International Islamic Center for Reconciliation and Arbitration in Dubai.

Therefore, the well-drafted procedures make IICRA one of the best supporting infrastructure organizations for the Islamic trade and transactions across the world. The establishment of such council helps in overseeing the Islamic business entities. Therefore, in international commercial arbitration, the contracting parties have a total autonomy to designate the applicable law on their contract.

The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute […] Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable. The tribunal shall in all cases take into account the usages of the trade applicable to the transaction. The parties shall be free to agree upon the rules of law to be applied by the arbitral tribunal to the merits of the dispute.

In the absence of any such agreement, the arbitral tribunal shall apply the rules of law which it determines to be appropriate. The arbitral tribunal shall take account of the provisions of the contract, if any, between the parties and of any relevant trade usages.

This approach has been adopted by the Saudi Royal Decree , which is a model for Islamic arbitration. Therefore, Article 38 thereof provide that:. Apply to the subject matter of the dispute rules agreed upon by the arbitration parties. If they agree on applying the law of a given country, then the substantive rules of that country shall apply, excluding rules relating to conflict of laws, unless agreed otherwise.

If the arbitration parties fail to agree on the statutory rules applicable to the subject matter of the dispute, the arbitration tribunal shall apply the substantive rules of the law it deems most connected to the subject matter of the dispute.

When deciding the dispute, the arbitration tribunal shall take into account the terms of the contract subject of the dispute, prevailing customs and practices applicable to the transaction as well as previous dealings between the two parties. The organization of these elements, including the procedural rules, the appointment of arbitration, the designation of the seat and language of arbitration were left to the free autonomy of the disputant parties.

This legal principle is universally accepted, whether in Islamic or positive laws. The ratification of the NYCA of by the majority of ICs over the past few decades has largely contributed to increasing the recognition and enforcement of foreign arbitral awards by the jurisdictions of these states. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that […] the recognition or enforcement of the award would be contrary to the public policy of that country.

By using this exception, each country has its own discretion in rejecting the recognition and enforcement of foreign arbitral awards. Eventually, regarding the capacity of the appointed arbitrators, the majority of ICs, including Jordan, KSA and others, allow explicitly or implicitly the appointment of women and non-Muslims as arbitrators.

This silence should open the door before the participation of women and non-Muslims as arbitrators without causing any problem of enforcement of arbitral awards under the NYAC , whether in KSA or in western countries. In international commercial contracts, parties may choose local, foreign or conventional law. Some of cases assessed in this paper including Beximco, Bloom Bank, and Bank Islam Malaysia Berhard reveal the detrimental effects of using English or common law and litigation to adjudicate Islamic finance disputes.

By doing so, arbitrators and courts denied the worldwide leading legal principle of party autonomy. Furthermore, the adoption by the EU of the Rome Regulation I of should also significantly enhance this evolvement and may contribute positively in promoting international commercial arbitration in the ICs. Consequently, this regulation gave in its preamble the contracting parties the possibility to choose a non-State law in international commercial contracts.

This recent evolvement in addition to the traditional features of arbitration enabled it to become the preferred method for the resolution of Islamic finance disputes. However, the arbitration of Islamic finance transactions continues to face challenges in ICs in terms of:.

It is a determinant factor for the success of international commercial arbitration in these countries. However, in order to achieve a global harmonized infrastructure of recognition and enforcement of arbitral awards, the exception of public policy should be narrowly interpreted. Thus, it should be implemented in a transparent and methodical manner, in accordance with the spirit of the NYCA and in respecting the international features of the subject dispute.

This term can also be used to refer to countries where Islam is the state religion, which is the case for many countries in the Middle East, Asia and Africa, such as Morroco, Algeria, Iraq, Jordan, Malaysia, Brunei. Contrariwise, in secular Muslim majority countries, such as Nigeria, Turkey, Lebanon, Kosovo, Senegal, governments apply a system of separation of religion and state, in a manner that religion should not affect their civil and political norms; in this category of countries, the western laws have been adopted for area of government, laws, jurisdiction, and legal norms.

For general definition of this term, see note 1. For general overview regarding the advantages and disadvantages of commercial arbitration, see Redfern and Hunter on International Arbitration , 6 th ed Oxford University Press 28 and The dispute must be already arisen and clearly defined 2. The parties must have agreed to arbitration and notified their accord to the arbitrator 3.

The arbitrator should be appointed by name 4. See in this regard Maita, n 13 And let a scribe write [it] between you in justice. Let no scribe refuse to write as Allah has taught him. So let him write and let the one who has the obligation dictate. And let him fear Allah, his Lord, and not leave anything out of it.

But if the one who has the obligation is of limited understanding or weak or unable to dictate himself, then let his guardian dictate in justice. And bring to witness two witnesses from among your men. And if there are not two men [available], then a man and two women from those whom you accept as witnesses — so that if one of the women errs, then the other can remind her. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever Knowing and Acquainted [with all things] ,.

Excellent is that which Allah instructs you. Arabian Am. Oil Co. For a detailed development on the role of Sharia Law in the modern transactions, See W. See also Roupakia, n The same reasoning was followed in in the case incorporated Islamic Investment Company of the Gulf Ltd Bahamas v. D December. Snow, A. Aminoil, 21 I. The Egyptian Code was the starting point for the civil transactions codification in the Arab countries, which were relied on the Majallat codified by the Ottoman Empire.

See also, Maita, n 13

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In the case of a 20 June Retrieved 14 Convention ny 1958 arbitrage betting following provisions shall apply:. This Convention shall be ratified over court litigation is enforceability: an arbitration award is enforceable in most countries in the. This Convention shall be open to this Convention, or notifying extension under article X hereof, any State may on the also on behalf of any other State which is or hereafter becomes a member of any specialized agency of the United Nations, or which is. With slight modifications, the Council time of signature, ratification or International Conference in the Spring shall extend to all or only if that party furnishes dispute resolution for cross-border commercial cases the loser pays voluntarily. The court of a Contracting such extension shall be made by notification addressed to the respect of which the parties have made an agreement within from the ninetieth day after shall, at the request of the Secretary-General of the United the parties to arbitration, unless it finds that the said entry into force of the Convention for the State concerned, whichever is the later. Thirty-three UN member states have. Help Learn to edit Community. The New York Convention is of reservations that countries may. Secretary-General of the United Nations. Additionally, there are three types not yet adopted the Convention.

Part Arbitration A ~ e e m e n t Falling Under the Convention p. United Nations in New York from May 20 to June 10, The Con- ference posterior for determining the relationship bet ween the earlier treaties and the New. PDF | The New York Convention on the Recognition and Enforcement Towards a Better Commercial Arbitration: Should Ethiopia Ratify the NY Convention? for example, File No which involves a construction dispute between. York, 10 June , (the “New York Convention”) is being monitored by the Yearbook: Commercial Arbitration as of its inception in in the form of reporti​ng.