• 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.27 no.1
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• pp.37-57
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• 2017

An arbitrator in Pakistan is required to file an arbitral award in a civil court of competent jurisdiction for its recognition and enforcement if an arbitral award is domestic or before the concerned High Court if the arbitral award is international. The court of law is required to issue a decree upon submitted arbitral award if an interested party do not apply for modification or remission of an arbitral award and do not challenge it for setting it aside or for revocation of its recognition and enforcement within a prescribed time limit. The challenging process of an arbitral award can be started by the aggrieved party of an arbitration agreement at the seat of arbitration or at the place where recognition and enforcement of an arbitral award is sought. The aggrieved party to an arbitration agreement is required to challenge an arbitral award within a prescribed time limit if contracting parties have not excluded the right to challenge an arbitral award. Limitation for challenging an arbitral award in Pakistan is 30 days under article 158 of the Limitation Act 1908, starting from the date of service of notice of filling of an arbitral award before the court of law. Generally, 90 days are given for an appeal against decision of the civil court of law under section 96 of the Code of Civil Procedure 1908, it is therefore highly recommended that challenging time of an arbitral award should be increased from 30 to 90 days.

• Journal of Arbitration Studies
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• v.25 no.2
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• pp.3-17
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• 2015

For many years commentators have requested more active regulation of attorney ethics in international arbitration. Gradual deterioration of ethical standards in international arbitration will bring disrepute and, once its reputation is lost, it could take decades to rebuild confidence. The first reason for increasing unethical behavior is that there is no ethical code generally applied to all lawyers participating in international arbitration. A second reason might be that nobody is actively regulating attorneys in international arbitration. The first step to solve this problem is that major arbitration institutions should cooperate to enact a uniform code of conduct to be generally applied to all attorneys representing parties in international arbitration. Recently, IBA and LCIA prepared guidelines on party representation in international arbitration, and the guidelines will help attorneys follow uniform standardsof ethics. However, this will not be sufficient. There should be a regulating body to monitor attorney ethics and take sanctions against unethical attorneys accordingly. Arbitrators, who can see unethical behavior by attorneys from the closest distance, are the most appropriate regulating force rather than courts of arbitration seat or an attorney's licensing country. Of course, arbitrators don't have powers to withdraw or suspend an attorney's license, but they have powers to control attorneys'behavior within arbitration proceedings such as an allocation of fees and costs, barring the assertion of claims or defenses, drawing adverse inferences, or precluding the submission of evidence or testimony. Furthermore, arbitrators should be provided with such obligation as active control of attorney ethics. Even arbitration institutions should participate by imposing on an attorney who is a repeat offender a suspension from appearing in future arbitrations. Unethical behavior will decrease through concerted actions among arbitrational institutions to introduce a uniform code of conduct and to empower arbitrators for more efficient regulation of attorney ethics.

• Journal of Arbitration Studies
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• v.25 no.3
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• pp.3-31
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• 2015

This paper sets out a multi-dimensional approach that parties drafting a "hybrid clause" for their arbitration agreement can adopt, for purposes of maximizing enforceability, taking into account the multi-jurisdictional interplay between the seat Court, the governing law and the enforcement Court(s), as well as mandatory rules that can be present in the lex arbitrii, the governing law, and/or the law of the enforcement for a. This paper draws on both the co-authors' practice experience, as well as first principles of party autonomy in light of mandatory rules, based predominantly on the scholarship of Briggs and Nygh.

• Journal of Arbitration Studies
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• v.29 no.2
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• pp.161-199
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• 2019

As international trades between Korea and China increase, the number of civil disputes also increases. The civil dispute settlement system and the court system in China are distinctive from those of Korea. China has its own court systems which are characterized by the Chinese Communist System. Due to the influence of the decentralized local autonomy tradition, the case laws of each Province in China are not unified throughout the China. This is partly because only two instances are provided in China, and the parties cannot appeal to the Supreme People's Court of China unless there is a special reason. In Korea, three instances are provided and parties can appeal to the Supreme Court if a party so chooses. In addition, there are many differences in the judicial environment of China compared to Korea. Therefore, if there is a dispute between a Korean party and a Chinese party, arbitration is recommended rather than court litigation. This article examines the points to be considered for interim measures in China during arbitration. Where the seat of arbitration is Korea, interim measures cannot be taken by the order of the Chinese court in the middle of or before arbitration procedures. On the other hand, it is possible to take interim measures through the Chinese court in the middle of or before the arbitration procedure in China or Hong Kong. It also reviews the points to be noted in case of the enforcement of arbitration awards in China where permission from the upper Court is required to revoke or to deny the recognition or enforcement of a foreign-related or foreign arbitration award.

• Journal of Korea Trade
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• v.25 no.7
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• pp.108-121
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• 2021

Purpose - This paper studies whether the CISG is applicable to the arbitration agreement when the validity of the arbitration agreement becomes an issue. To make the study clear, it limits the cases assuming that the governing law of the main contract is the CISG and the arbitration agreement is inserted in the main contract as a clause. Also, this paper discusses only substantive and formal validity of the arbitration agreement because the CISG does not cover the questions of the parties' capacity and arbitrability of the dispute. Design/methodology - This paper is based on scholarly writings and cases focusing on the principle of party autonomy, formation of contract and the doctrine of separability to discuss characteristic of arbitration agreement. In analyzing the cases, it concentrates on the facts and reasonings that show how the relative regulations and rules are interpreted and applied. Findings - The findings of this paper are; regarding substantive validity of arbitration agreement, the courts and arbitral tribunals consider general principles of law for the contract and the governing law for the main contract. In relation to formal validity of arbitration agreement, the law at the seat of arbitration or the law of the enforcing country are considered as the governing law in preference to the CISG because of the recognition and enforcement issues. Originality/value - This paper attempts to find the correlation between the CISG and the arbitration agreement. It studies scholars' writing and cases which have meaningful implication on this issue. By doing so, it can provide contracting parties and practitioners with some practical guidelines about the governing law for the arbitration agreement. Furthermore, it can help them to reduce unpredictability that they may confront regarding this issue in the future.

• Journal of Arbitration Studies
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• v.28 no.4
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• pp.131-152
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• 2018

On October 31, 2013, the Singapore Court of Appeals handed down a landmark decision in the case of PT First Media TBK v Astro Nusantara International and Others [2013] SGCA 57. The case arose out of an arbitration in Singapore involving the Malaysian conglomerate Astro and the Indonesian conglomerate Lippo, which culminated in a USD 250 million award in favor of Astro. The final award was given to three Astro subsidiaries who were not parties to the arbitration agreement, but who were joined in the arbitration pursuant to an application by Astro. Lippo then applied to the Singapore High Court to set aside the enforcement orders. The Court of Appeals, however, reversed the High Court's decision, and found that Astro was only entitled to enforce the awards. Also, the Court of Appeals undertook a detailed analysis of the use of active and passive remedies to defeat an arbitral award at the seat and the place of enforcement, respectively. It also touches on the innovation of forced joinders of third parties in arbitrations, which have garnered significant interest in the arbitration community. This decision is therefore expected to have a significant impact on the practice of international arbitration, including in relation to how awards can be enforced or defeated, as the case may be.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.54
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• pp.145-166
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• 2012

This article examines the limitations of the choice of law caused by Internationally Mandatory Rules in Entering into the Turn-Key Contracts. In June 2007, Clough Engineering, a corporation based in Western Australia, approached the Federal Court of Australia seeking injunctive relief and leave to commence proceedings against an entity located outside Australia, the Oil & Natural Gas Corp of India (ONGC). Clough had contracted with ONGC to provide a range of services in relation to the construction of gas and oil wells off the coast of India. The contract was governed by Indian law, and included a clause by which the parties agreed to submit their disputes to arbitration. Yet the Federal Court assumed jurisdiction over the dispute, principally because Clough had framed its claim as a plea for relief for contraventions of Australia's Trade Practices Act 1974. The result of this cases that it is possible for an arbitral tribunal to hear a claim made under the Trade Practices Act even if that claim arises "in connection with"a contract the proper law of which is not the law of Australia. However, in Transfield Philippines Inc v Pacific Hydro Ltd, the turnkey contract included a choice of law provision, selecting the law of the Philippines, and a clause providing that all disputes arising out of or in connection with the agreement were to be arbitrated under the ICC Rules, with the seat in Singapore. Hearings were in fact conducted in Melbourne, Australia, although all awards were published in Singapore. The result of this cases that it would not be appropriate for an Australian court to adjudicate claims for misrepresentation under Australian statutes dealing with misleading and deceptive conduct, once the arbitral tribunal had determined, applying appropriate choice of law rules, that such claims are governed by the law of the Philippines. To do so would lead to a multiplicity of proceedings, usurp the jurisdiction of the tribunal and deny the intention of the parties as expressed by them in the arbitration agreement. In short, the Internationally Mandatory Rules as an active part of public order create limitation of party autonomy in choice of law rules in a different way. The court is fully entitled to refuse to use those rules of law applicable on the contract which are in the contradiction to the internationally mandatory rules of law of the forum. And the court may give an effect to those Internationally Mandatory Rules that form a part of a law of foreign country when deciding about applicability of certain rules of applicable law.