• Journal of Arbitration Studies
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• v.24 no.4
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• pp.99-125
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• 2014

The purpose of this paper is to introduce the arbitral proceeding system in Indonesia. Arbitration in Indonesia is governed by Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (Arbitration Law). Also, the Indonesian National Board of Arbitration (BANI) is the main arbitration body in Indonesia. BANI handles both domestic and international disputes. BANI has published its Rules of Arbitral Procedure (the BANI Rules). Within a period of not longer than 30 days after receiving the petition for arbitration, the respondent must submit its reply. Also, if the respondent wishes to assert against the claimant a counter-claim in connection with the dispute, the respondent may submit such counter-claim together with its statement of defense no later than the first hearing. This paper suggests that the following may be some of the disadvantages to using arbitration under the BANI Rules. The first is that final decision or approval regarding the designation of all arbitrators shall be in the hands of the Chairman of BANI. It is the chief problem facing the international stream of arbitration systems. The second is that arbitrators must have certain minimum qualifications. BANI Rules provide the same requirements for the qualifications of the arbitrators as the Arbitration Law. The third is that the BANI Rules require arbitrators in BANI-administered references to be chosen from BANI's list of arbitrators. BANI can also consider a recognized foreign arbitrator if the foreign arbitrator meets the qualification requirements and is prepared to comply with the BANI Rules. This includes the requirement that the appointing party must bear the travel, accommodation, and other special expenses related to the appointment of the foreign arbitrator.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.55
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• pp.63-93
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• 2012

The purpose of this paper is to examine the consideration factors, from both parties' perspective, to select the most appropriate arbitral institution when they inset an arbitration clause in their contract. Accordingly, the author analyzed the advantages of institutional arbitration compared to non-institutional arbitration. The typical advantages of institutional arbitration would include: $\bullet$ Benefits of using an established set of rules $\bullet$ Services provided by the institution $\bullet$ Low risks of obstruction $\bullet$ Enhancement of the possibilities of enforcement $\bullet$ Forecast of the estimated cost $\bullet$ Specially useful for existing disputes Next, this author examined the consideration factors when selecting the institution in respect of the following factors: $\bullet$ Institution's arbitration rules $\bullet$ Institution's rule regarding the appointment of arbitrators $\bullet$ Ability of administrators of each institution $\bullet$ Reputation of the arbitral institution and the likability of enforceability of its award $\bullet$ Cost $\bullet$ Choice of the arbitral institution in relation to the choice of place of arbitration Finally, this author reviewed Model Arbitration Clause of major international or local Institutions, including ICC, AAA, LCIA, KCAB, CIETAC, ICSID and WIPO. Further examination was given to the selection of the numbers of the arbitral tribunal, the seat of arbitration and the language of arbitration, according to the designated articles in each institution's arbitration rules.

• Journal of Arbitration Studies
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• v.18 no.2
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• pp.3-31
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• 2008

At its thirty-ninth session(New York, 19 June - 7 July 2006), United Nations Commission on International Trade Law(hereinafter referred to as the Commission) agreed to give priority to the topic of revising the UNCITRAL Arbitration Rules. From the forty-fifth through the forty-seventh session, the Working Group checked various issues based on the draft revised version of the UNCITRAL Arbitration Rules prepared by the Secretariat. At its forty-eighth session, the Working Group is going to finish its first reading of articles 38 to 41 of the draft revised version of the UNCITRAL Arbitration Rules, and to commence its second reading of the draft revised version of UNCITRAL Arbitration Rules. Korea is keen on enticing foreign direct investment into its territory. From the 1960s, Korea has concluded more than 80 BITs. Korea is making efforts to conclude FTAs with its trading partners. As of January, 2008, 3 FTAs have taken into effect with respect to Korea. According to provisions on dispute settlement found in such BITs and FTAs involving Korea, the Rules can be chosen for Investor-State Arbitration. Furthermore, the Rules is followed by the arbitration rules for domestic and international arbitrations administered by the Korean Commercial Arbitration Board. If the Commission adopts the revised version of UNCITRAL Arbitration Rules, the Rules will be able to give impact on the arbitration law and practice around the world of arbitration. That is the reason why we should keep attention to the development of the deliberations of the Working Group.

• Journal of Arbitration Studies
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• v.19 no.2
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• pp.95-126
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• 2009

One of the controversial issues in investor-state investment arbitration is the interpretation of "umbrella clause" that is found in most BIT and FTAs. This treaty clause requires on Contracting State of treaty to observe all investment obligations entered into with foreign investors from the other Contracting State. This clause did not receive in-depth attention until SGS v. Pakistan and SGS v. Philippines cases produced starkly different conclusions on the relations about treaty-based jurisdiction and contract-based jurisdiction. More recent decisions by other arbitral tribunals continue to show different approaches in their interpretation of umbrella clauses. Following the SGS v. Philippines decision, some recent decisions understand that all contracts are covered by umbrella clause, for example, in Siemens A.G. v. Argentina, LG&E Energy Corp. v. Argentina, Sempra Energy Int'l v. Argentina and Enron Corp. V. Argentina. However, other recent decisions have found a different approach that only certain kinds of public contracts are covered by umbrella clauses, for example, in El Paso Energy Int'l Co. v. Argentina, Pan American Energy LLC v. Argentina and CMS Gas Transmission Co. v. Argentina. With relation to the exhaustion of domestic remedies, most of tribunals have the position that the contractual remedy should not affect the jurisdiction of BIT tribunal. Even some tribunals considered that there is no need to exhaust contract remedies before bringing BIT arbitration, provoking suspicion of the validity of sanctity of contract in front of treaty obligation. The decision of the Annulment Committee In CMS case in 2007 was an extraordinarily surprising one and poured oil on the debate. The Committee composed of the three respected international lawyers, Gilbert Guillaume and Nabil Elaraby, both from the ICJ, and professor James Crawford, the Rapportuer of the International Law Commission on the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, observed that the arbitral tribunal made critical errors of law, however, noting that it has limited power to review and overturn the award. The position of the Committee was a direct attack on ICSID system showing as an internal recognition of ICSID itself that the current system of investor-state arbitration is problematic. States are coming to limit the scope of umbrella clauses. For example, the 2004 U.S. Model BIT detailed definition of the type of contracts for which breach of contract claims may be submitted to arbitration, to increase certainty and predictability. Latin American countries, in particular, Argentina, are feeling collectively victims of these pro-investor interpretations of the ICSID tribunals. In fact, BIT between developed and developing countries are negotiated to protect foreign investment from developing countries. This general characteristic of BIT reflects naturally on the provisions making them extremely protective for foreign investors. Naturally, developing countries seek to interpret restrictively BIT provisions, whereas developed countries try to interpret more expansively. As most of cases arising out of alleged violation of BIT are administered in the ICSID, a forum under the auspices of the World Bank, these Latin American countries have been raising the legitimacy deficit of the ICSID. The Argentine cases have been provoking many legal issues of international law, predicting crisis almost coming in actual investor-state arbitration system. Some Latin American countries, such as Bolivia, Venezuela, Ecuador, Argentina, already showed their dissatisfaction with the ICSID system considering withdrawing from it to minimize the eventual investor-state dispute. Thus the disagreement over umbrella clauses in their interpretation is becoming interpreted as an historical reflection on the continued tension between developing and developed countries on foreign investment. There is an academic and political discussion on the possible return of the Calvo Doctrine in Latin America. The paper will comment on these problems related to the interpretation of umbrella clause. The paper analyses ICSID cases involving principally Latin American countries to identify the critical legal issues arising between developing and developed countries. And the paper discusses alternatives in improving actual investor-State investment arbitration; inter alia, the introduction of an appellate system and treaty interpretation rules.

• Journal of Arbitration Studies
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• v.30 no.1
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• pp.139-160
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• 2020

Shalish is a key ingredient of the dispute resolution culture in Bangladesh since a formal court system has been known to show inefficiencies, such as overburdened cases and litigation process delays. This paper investigates the main function of Shalish and examines the evolution of Shalish in the perspectives of its three variants: a community-based Shalish, a village court, and an NGO variant of Shalish in modern extensions. It was found that traditional Shalish may play a role in the dispute resolution system in modern villages. A village court is a kind of hybrid dispute resolution system combining an informal dispute resolution with a formal court system. A village court is administered by the Union Parishad without intervention from the central government. Both the Shalish and village court have the weakness of unfair verdict exercised by local elders within a community. For this reason, an NGO variant Shalish is to reflect voices of women and other lower people in the community. To this study's interpretation, a village court is a new kind of Shalish combined with a formal court system while an NGO variant Shalish is also a "new" Shalish combined with a mediation system. In this respect, core elements of Shalish tradition have not been changed although various forms of new dispute resolution systems have emerged in the modern world.

• The Korean Journal of Air & Space Law and Policy
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• v.5
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• pp.53-75
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• 1993

This article is concerned with the comment on "Some New Problems of International Aviation Security-Considerations Forcused on its Legal Aspects". Ever since 1970, in addition to the problem of failure to accept the Tokyo, Hague and Montreal Conventions, there has been also the problem of parties to them, failing to comply with their obligations under the respective treaties, in the form especially of nominal penalties or the lack of any effort to prosecute after blank refusals to extradite. There have also been cases of prolonged detention of aircraft, passengers and hostages. In this regard, all three conventions contain identical clauses which submit disputes between two or more contracting States concerning the interpretation or application of the respective conventions to arbitration or failing agreement on the organization of the arbitration, to the International Court of Justice. To the extent to which contracting States have not contracted out of this undertaking, as I fear they are expressly allowed to do, this promision can be used by contracting States to ensure compliance. But to date, this avenue does not appear to have been used. From this point of view, it may be worth mentioning that there appears to be an alarming trend towards the view that the defeat of terrorism is such an overriding imperative that all means of doing so become, in international law, automatically lawful. In addition, in as far as aviation security is concerned, as in fact it has long been suggested, what is required is the "application of the strictest security measures by all concerned."In this regard, mention should be made of Annex 17 to the Chicago Convention on Security-Safeguarding International Civil Aviation against Acts of Unlawful Intereference. ICAO has, moreover, compiled, for restricted distribution, a Security Manual for Safeguarding Civil Aviation Against Acts of Unlawful Interference, which is highly useful. In this regard, it may well be argued that, unless States members of ICAO notify the ICAO Council of their inability to comply with opecific standards in Annex 17 or any of the related Annexes in accordance with Article 38 of the 1944 Chicago Convention on International Civil Aviation, their failure to do so can involve State responsibility and, if damage were to insure, their liability. The same applies to breaches of any other treaty obligation. I hope to demonstrate that although modes of international violence may change, their underlying characteristics remain broadly similar, necessitating not simply the adoption of an adequate body of domestic legislation, firm in its content and fairly administered, but also an international network of communication, of cooperation and of coordination of policies. Afurther legal instrument is now being developed by the Legal Committee of ICAO with respect to unlawful acts at International airports. These instruments, however, are not very effective, because of the absence of universal acceptance and the deficiency I have already pointed out. Therefore, States, airports and international airlines have to concentrate on prevention. If the development of policies is important at the international level, it is equally important in the domestic setting. For example, the recent experiences of France have prompted many changes in the State's legislation and in its policies towards terrorism, with higher penalties for terrorist offences and incentives which encourage accused terrorists to pass informations to the authorities. And our government has to tighten furthermore security measures. Particularly, in the case an unarmed hijacker who boards having no instrument in his possession with which to promote the hoax, a plaintiff-passenger would be hard-pressed to show that the airline was negligent in screening the hijacker prior to boarding. In light of the airline's duty to exercise a high degree of care to provide for the safety of all the passengers on board, an acquiescence to a hijacker's demands on the part of the air carrier could constitute a breach of duty only when it is clearly shown that the carrier's employees knew or plainly should have known that the hijacker was unarmed. The general opinion is that the legal oystem could be sufficient, provided that the political will is there to use and apply it effectively. All agreed that the main responsibility for security has to be borne by the governments. A state that supports aviation terrorism is responsible for violation of International Aviation Law. Generally speaking, terrorism is a violation of international law. It violates the sovereign rights of states, and the human rights of the individuals. We have to contribute more to the creation of a general consensus amongst all states about the need to combat the threat of aviation terrorism. I think that aviation terrorism as becoming an ever more serious issue, has to be solved by internationally agreed and closely co - ordinated measures.

• Journal of agricultural medicine and community health
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• v.46 no.1
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• pp.1-11
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• 2021

Objectives: This research aimed to identify the level of perception, knowledge, preventive behavior, and factors affecting preventive behavior of patients with asthma and chronic obstructive pulmonary disease against particulate matter. Methods: This research was a descriptive survey research, and the subjects were chronic pulmonary disease patients over the age of 19 and under 80 who visited a university hospital in Daegu City. Data was collected by convenience sampling through structured self-administered questionnaire survey from December 2019 to January 2020, and a total of 212 copies were used for analysis. Results: Out of 212 total subjects, 112 were asthma patients (52.8%) and 100 were chronic obstructive pulmonary disease patients (47.2%). The average score (out of 10) of perception, knowledge and preventive behavior of patients with asthma for particulate matter was 7.92, 6.99, and 7.10, respectively, while those with chronic obstructive pulmonary disease scored 7.72, 6.24, and 6.80, respectively. The knowledge score was significantly higher in patients with asthma than those with chronic obstructive pulmonary disease (p=0.007). Factors affecting particulate matter preventive behavior were perception score, knowledge score, and age for asthma patients, and perception score for chronic obstructive pulmonary disease patients. Conclusions: As a result of the above, the factors relate to the preventive behavior of patients with asthma and chronic obstructive pulmonary disease were perception score, knowledge score, and age for asthma, and perception score for chronic obstructive pulmonary disease. Raising the level of particulate matter preventive behavior can prevent the deterioration of chronic pulmonary diseases caused by particulate matter, so the development of arbitration programs considering the characteristics of the patients according to the disease and continuous and repetitive education are required.