Search Results

Based on the analysis of arbitration laws from different countries, this chapter points out textual, conceptual, and stylistic discrepancies that arise in the process of establishing closer harmonization in legal normative discourse at a global level. It argues that harmonization becomes particularly difficult when “model” texts have to be adopted in various contexts. Such contexts give rise to interesting differentiations in the resulting texts that can be attributed not only to the languages in which the final texts are expressed, but also to the different cultural traits and legal traditions of the communities for which they are meant. In particular, one can find significant variations in the specification of information in the various texts, which the chapter claims are due to the differences in socio-cultural expectations and practices that constrain social behavior in local contexts.

This volume is an attempt to address some legal discourse questions by contributing to the basic knowledge of legal language typically used in international commercial arbitration, and to suggest implications of this for legal practice, legal translation, and legal practitioner training. This chapter has three major objectives: firstly, to identify and bring into focus some of the main concepts and constructs in the field of comparative legal discourse; secondly, to identify and characterize the main contexts—socio-political, institutional, and professional—in terms of which comparative legal discourse can be studied, and where such study is practically relevant; and finally, to identify and outline an integrated set of appropriate discourse-analytical and other methodological procedures that enable the grounded study of legal writing so as to provide substantive, relevant, and usable accounts of value to practitioners in various fields.

Globalization and harmonization are dominant trends in international arbitration. As a result of the globalization of international trade, the number of international disputes submitted to arbitration has increased tremendously in recent decades, with actors from all continents speaking a multitude of languages. This chapter aims to show that, despite the growing use of English, translation continues to make a significant contribution, not only to the globalization, but also to the harmonization of international arbitration. This is important because, as arbitration experts say, the future of international arbitration lies in its harmonization. Though mostly behind the scenes, translation plays a vital role in numerous aspects of international arbitration, including the translation of legal documents for the proceedings, the translation of national arbitration laws into world languages, the translation of institutional procedural rules and standard arbitral clauses, the production of multilingual instruments of international arbitration law, and others.

This chapter explains the role of procedural law in arbitration. Aside from the arbitrators, the language, and the substantive law, the principle of party autonomy affords the parties to arbitration the freedom to choose the procedural law. In order to attract more cross-border arbitration business to Scotland, the policy clearly sets the tone that the choice of procedural law can be different from the choice of the substantive law. For instance, parties to arbitration may choose Swiss law to govern disputes arising from the main contract between them but to have procedural matters governed by Scottish arbitration law. In Scotland, the choice of arbitrating in accordance with the Arbitration (Scotland) Act 2010 does not affect the parties' choice of substantive law other than Scots law to determine the substantive issues. This chapter discusses issues relevant to procedural law in arbitration, including the seat of arbitration, default rules, mandatory rules, and the debate over delocalisation theory concerning the seat of arbitration in international commercial arbitration. It also considers jurisdictions where delocalisation theory has received support, such as France, Switzerland and Belgium.

This chapter focuses on the recently enacted Arbitration (Scotland) Act 2010 (‘the Act’) whose remit is to reform the main out-of-court mechanism for the resolution of commercial law disputes. The principal aim of the Act is particularly aspirational, namely to encourage the use of arbitration domestically and attract international arbitration business to Scotland. The Act was passed by the Scottish Parliament on 18 November 2009, received Royal Assent on 5 January 2010, and came into force on 7 June 2010.

This chapter provides an overview of the main features of the Arbitration (Scotland) Act 2010. It first considers the three founding principles of the Act: the first sets out the objective of arbitration, which is to ensure that fairness and impartiality are to be applied during the arbitration proceedings; the second lays down the internationally followed principle of party autonomy; and the third deals with the principle of ‘limited court intervention’. The chapter then discusses the Act's scope of applications concerning types of arbitration and dispute before explaining the seat of arbitration, generally defined as the country or the place in which the arbitration is based. It also examines the Act's provisions concerning statutory arbitration and the New York Convention awards, along with the relevant arbitration laws that it repeals, namely: the Arbitration (Scotland) Act 1894; the Arbitration Act 1950; the Arbitration Act 1975; s 3 of the Administration of Justice (Scotland) Act 1972; and ss 17 and 66 of and Sch 7 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Finally, it describes the structure of the Arbitration (Scotland) Act 2010.

This chapter provides a historical overview of legal development in Scotland prior to the enactment of the Arbitration (Scotland) Act 2010. It first considers Scotland's arbitration law, which was based almost entirely on the common law, with piecemeal statutory provisions dealing with specific points. It then discusses the laws that had governed the country's international commercial arbitration before turning to the Scottish Arbitration Code 1999 and the Arbitration (Scotland) Bills of 2002 and 2009. It also examines the Arbitration (Scotland) Act 2010, designed to offer a ‘one-stop shop’ providing a single track of arbitration law corresponding with the modern trends in arbitration, both domestic and international. The Arbitration (Scotland) Act 2010 was promulgated by the government with the aim of putting Scotland on the map of international arbitration and persuading international businessmen to choose Scotland as the place of their arbitration in order to generate revenue.

Vagueness and indeterminacy in statutory texts create a dilemma in law. The basic assumption is that society must be governed by the rule of law and not on the basis of individual beliefs or actions. However, it is also obvious that indeterminacy and vagueness are typically inherent characteristics of law, thus making interpretation a necessary and important aspect of legal application. This chapter investigates vague expressions in arbitration laws and claims that they are typically essential as discretion markers because the flexible nature of arbitration discourse makes relatively more room for interpretation. It argues that qualifying expressions, although integral features of legislative provisions, do not necessarily eliminate vagueness. This is chiefly because of the presence of “internal” qualifiers which contribute significantly to the negotiation of scope and application.

This chapter analyzes the implications of legal globalization in the context of Brazil, a Portuguese-speaking and civil law country, but one which is fully integrated into the global economy. It emphasizes the adjustments that need to be made to comply with the latest requirements for becoming “legally global” through the enactment of the Brazilian Arbitration Law and the implications this has on national legal practice, culture, discourse, and education. The chapter points out how national legal discourse tends to display a new texturing of meanings to reflect the “generalized tensions between international practices and local traditions,” while at the same time legal education and professional training calls for a new perspective for training “international lawyers” to achieve “core international legal competence.”

Any development initiative in the energy sector will not only consider the legal framework for attracting such investment but the dispute resolution mechanisms also. Conventionally, the dispute resolution mechanism usually offered is litigation through the courts. However, it has become clear that no foreign investor would like to be restricted to fora like litigation without other alternatives. This chapter examines the role that law plays in the enablement and empowerment of the world’s energy poor with particular focus on Africa; the various dispute resolution mechanisms; and the legal framework for arbitration in Africa states to determine whether the arbitration laws enhance or impede access to energy. The chapter also considers whether arbitration laws and other instruments are stimulants for inward investment into the energy sector and concludes that if arbitration is to serve this purpose the contracts and treaties should be properly negotiated and clauses on arbitration professionally drafted.

The Permanent Court of Arbitration administered 190 cases in 2018. These cases comprise 3 inter-state arbitrations, 112 investor-state arbitrations, and other 73 mixed arbitrations, involving various combinations of states, intergovernmental organizations, and other public or private entities. Of these cases, 56 were initiated in 2018. The investor-state arbitrations arose under various international investment agreements and national investment laws; the other mixed arbitrations, under contracts. Decisions of particular significance among those issued in 2018 include the Decision on Jurisdiction and Admissibility of 30 January 2018 in Resolute Forest Products Inc. v. Canada and the Second Partial Award on Track II of 30 August 2018 in Chevron & TexPet v. Ecuador. These decisions are notable for their contributions to the interpretation and application of general international law, particularly the law of state responsibility, in investor-state disputes.

This article focuses on the federal arbitration law. On February 12, 1925, President Calvin Coolidge signed the United States Arbitration Law, which became effective on January 1, 1926. This act reversed the hoary doctrine that agreements for arbitration are revocable at will and are unenforceable, and in the language of the statute itself, they are made “valid, enforceable and irrevocable” within the limits of federal jurisdiction. There are three evils which arbitration is intended to correct: (1) the long delay usually incident to a proceeding at law, in equity or in admiralty, especially in recent years in centers of commercial activity, where there has arisen great congestion of the court calendars; (2) the expense of litigation; and (3) the failure, through litigation, to reach a decision regarded as just when measured by the standards of the business world. The article then argues that the proposed law rests upon the constitutional provision by which Congress is authorized to establish and control inferior federal courts. It also contends that sound public policy demands specific enforcement of arbitration agreements by the law.

Liechtenstein is the only continental European country to have adopted and codified the common law trust. The Liechtenstein trust (‘Treuhänderschaft’) was codified in 1926 in the Law on Persons and Companies (‘PGR’) with clear inspiration from the English Trustee Act 1925. Some English common law rules have been enacted (eg the equitable rules on tracing (‘Spurfolge’; Art 912 (3) PGR, § 30 TrUG). In 1928 the Law regarding Trust Enterprises (abbreviated as ‘TrUG’) was passed. This law was modelled on the so-called Massachusetts Business Trust and inserted in the PGR as Art 932a and consists of 170 paragraphs.