The Legacy of Anglo-American Textualism

1. Introduction to international commercial arbitration 2. The arbitration agreement 3. Drafting the arbitration agreement 4. Applicable laws and rules 5. Judicial assistance for arbitration 6. The tribunal 7. The arbitral proceedings 8. The award 9. Attempts to set aside an award 10. Enforcement of the award 11. Investment arbitration.

https://assets.cambridge.org/97805218/66668/frontmatter/9780521866668_frontmatter.pdf

The Principles and Practice of International Commercial Arbitration

This PhD research is concerned with the legal system for the settlement of petroleum disputes according to Iraqi law. It deals with international commercial arbitration as a means of resolving such disputes under Iraqi law, since Iraq does not have an adequate legal system for resolving disputes arising from petroleum agreements. It has not yet enacted specific legislation regulating or governing international commercial arbitration in general, and petroleum arbitration in particular. It is still dependent on the Code of Civil Procedure of 1969, which does not suffice to attract international investment. In addition, Iraq has not yet ratified or signed the leading international conventions concerning arbitration, such as the New York Convention of 1958 or the International Center for Settlement of Investment Disputes (ICSID). The thesis of this PhD is that Iraq needs special rules for the arbitration of petroleum disputes. These rules should achieve the balance between the needs of Iraq in its transitional period and foreign investors’ interests. The promulgation of a petroleum arbitration laws is an important legal guarantee which can attract international petroleum companies to Iraq. Both referencing and black- letter analysis methodology is followed in this thesis. The referancing approach consists of referance to the laws of selected developing countries, especially China and the United Arab Emirates, which have experience and expertise in investment and arbitration. The black- letter analysis approach is also deployed to analyse Iraqi attitudes towards arbitration, the legal nature of petroleum agreements and the challenges facing Iraq causing reluctant and hesitation in developing a comprehensive petroleum arbitration regime. This study tests, and finds it convincing that petroleum agreements are, indeed a special kind of investment agreement. The subject matter of this agreement is of exceptional monetary value and belongs to the Iraqi people. Article 111 of the Iraqi Constitutional of 2005 provides that “Oil and Gas are owned by all the people of Iraq in all regions and governorates”.1 Therefore, these agreements should be treated differently by subjecting them to a specialised arbitration regime 
rather than ordinary international commercial arbitration. The author’s vision, set out in this work, is that Iraq should promulgate petroleum arbitration laws and develop a specialised system to support this. These laws would lend weight to the application of Iraqi national law, and make the country more attractive for foreign investment. An independent petroleum arbitration centre should be established along the lines of Dubai’s International Arbitration Center and the Chinese International Economic and Trade Arbitration Commission. Its awards should be considered as final and enforced in the same manner as domestic awards.

1 Iraqi Constitution of 2005 publishes in Official Gazette issue 4012 of 28 May 2005. An English Language translation of the 2005 Constitution is available at accessed on 10 April 2014.

Modernising Iraq : a vision for a comprehensive petroleum arbitration regime in Iraq

This thesis concerns the implementation of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (henceforth, NYC). It addresses some contemporary problems associated with the implementation of the NYC and considers the Arab Gulf states (henceforth, GCC states) as a case study to illustrate these problems. The thesis first examines how different judicial interpretations of the NYC provisions may weaken the efficiency of the well-established legal framework that regulates the recognition and enforcement of foreign arbitral awards as established by the NYC, and developed by the practice of many jurisdictions during the last fifty years. Following this, it examines whether the laws and court decisions on the NYC in the GCC states are compatible with the best standards of international practice in this field.

Challenges in implementing the 1958 New York Convention: A case study of the Arab Gulf States.

There is a growing call to introduce a European public notice filing system for security rights in movable goods comparable to the notice filing system of Art. 9 UCC. A proposal to this effect has been adopted in Book IX DCFR, which represents a comprehensive framework of rules for proprietary security in movable assets. The ultimate aim of this thesis was to investigate whether a European notice filing system for security rights in movable assets should be introduced, and if so, to what extent Art. 9 UCC should serve as an example. In evaluating this question, this thesis focused on the interests of several types of parties that are typically involved in or exposed to secured transactions operating within the borders of the European Union. In a nutshell, it investigated whether it is likely that these parties will be "better off" in a system where a public filing system exists, measured by effectiveness and cost-efficiency. More specifically, this thesis proceeded from the proposition that it is worthwhile to strive for public filing if it effectively addresses the legal risks these parties are exposed to in the absence of public information on security interests and does so in a manner that is cost-efficient for the parties concerned, i.e. in accordance with a cost-benefit approach. The outcome was that a public filing system on a European scale may be useful in the aforementioned respect; its success will however, largely depend on the way it is designed and organized. The current proposal for a public notice filing system as embodied in Book IX of the European Register for Proprietary Security (‘ERPS’), is promising in various respects. This thesis presented a few recommendations aimed at further improving the proposal.

Publicity in secured transactions law: Towards a European public notice filing system for non-possessory security rights in movable assets?

Arbitration has become the dispute resolution method of choice in international transactions. This book provides the reader with immediate access to understanding the world of international arbitration, explaining how and why arbitration works. It provides the legal and regulatory framework for international arbitration, as well as practical strategies to follow and pitfalls to avoid. It is short and readable, but comprehensive in its coverage of the basic requirements, including the most recent changes in arbitration laws, rules, and guidelines. The third edition includes new sections on state to state arbitration, the role and power of the arbitrator, reform efforts in international investment treaties, transparency in international arbitration and third party funding. In the book, the author includes insights from numerous international arbitrators and counsel, who tell firsthand about their own experiences of arbitration and their views of best practices. Throughout the book, the principles of arbitration are supported and explained by the practice, providing a concrete approach to an important means of resolving disputes.

The Principles and Practice of International Commercial Arbitration: Third Edition

The Supreme Court has so significantly rewritten the Federal Arbitration Act (FAA) over the last twenty-five years that today it bears little resemblance to the statute enacted by Congress in 1925. Adopted as a simple procedural Act to enforce arbitration agreements, the FAA was intended to be applicable only in federal court. Today, the statute is a substantive statute applicable in both state and federal courts, which broadly pre-empts state law. The statute's pre-emption of state law has recently been confirmed and expanded in the Court's decision in Buckeye Check Cashing v. Cardegna (Feb. 2006). Although the thrust of the original legislation was to enforce arbitration agreements between merchants regarding fact-heavy commercial disputes, the Court has held that the FAA applies to statutory rights under antitrust, securities and employment laws. Moreover, although all workers' contracts were excluded from the Act in 1925, the Court has held that only transportation workers are excluded. Finally, despite concerns of Members of Congress that this legislation should not apply in "take-it-or-leave-it" situations, the increasing use of mandatory arbitration clauses in adhesion situations has closed access to the courts for a substantial segment of consumers, insureds, small businesses, and investors. How does a statute acquire a totally different scope and application without any legislative intervention? This article begins with the story of the Federal Arbitration Act's origins, and then discusses the interpretive methods used by the Supreme Court in the major cases that have defined the FAA. It concludes that none of the different interpretive methods used by the Court has served to cabin judicial discretion to legislate, resulting in a complete rewriting of the statute. The article also considers the impact of the Court's policy choices on our legal system. The FAA is a statute that reduces protections legislated in the fields of federal antitrust, securities and employment law, and intrudes upon state police powers to control core state functions involving contract law and legal process. The new architecture of the FAA appears to reflect judicial policy preferences for the economically powerful, favoring corporations over consumers, and employers over employees.

Statutory Misconstruction: How the Supreme Court Created a Federal Arbitration Law Never Enacted By Congress

Arbitration is a private system of justice, made possible by the parties' consent. In the United States, a court's ability to interfere with this private adjudicatory process or to set aside an arbitral award has been severely limited by the United States Federal Arbitration Act. Recently, parties to arbitrations held in the United States have sometimes asked for judicial review of an award for errors of law or fact. The question raised by this is whether the parties have the right to expand the grounds on which a court can review an arbitral award. The answer depends on the proper interpretation of the FAA.This Article will focus on the various policies behind the two different interpretations of the FAA's grounds for review. It concludes that while both positions raise important questions, the better interpretation of the FAA permits expanded judicial review. However, there are a number of pitfalls that parties need to consider before they seek expanded judicial review of arbitral awards.Part II will consider the conflicting circuit court positions regarding the proper scope of judicial review under the FAA, with an analysis of the rationales supporting each position. Part III will then examine domestic enforcement issues which arise when parties have agreed to expanded judicial review, including different approaches which may be taken by state and federal courts. Part IV will consider the complexities of international enforcement of arbitral awards, particularly the tendency of some courts to enforce awards even though they have been vacated in the place where made, and will focus on problems of enforcement internationally when expanded review has been sought. The Article concludes that even though the better legal arguments support expanded judicial review, the practical problems with enforcement of awards subjected to expanded judicial review remain significant.

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Can Parties Tell Court What to Do? Expanded Judicial Review of Arbitral Awards

Reprinted with permission of UNCITRAL Completed in New York, on June 10, 1958 at the United Nations & the Convention entered into force on June 7, 1959. Treaty Series, vol. 330, p. 38, No. 4739 (1959) Article I This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought. The term “arbitral awards” shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted. When signing, ratifying or acceding to this Convention, or notifying extension under Article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. 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.

The Principles and Practice of International Commercial Arbitration: The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention) (1958)

Margaret L. Moses

Papers

The Principles and Practice of International Commercial Arbitration

The Principles and Practice of International Commercial Arbitration: Third Edition

Statutory Misconstruction: How the Supreme Court Created a Federal Arbitration Law Never Enacted By Congress

Can Parties Tell Court What to Do? Expanded Judicial Review of Arbitral Awards

The Principles and Practice of International Commercial Arbitration: The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention) (1958)