Recently, focus has been brought upon the use of international arbitration to solve human rights abuses caused by businesses (“BHR Arbitration“). Disputes involving human rights violations often occur between parties of unequal financial means and commercial sophistication, and in countries which cannot offer an efficient and free from corruption judicial system. Arbitration has the potential to represent a valid remedy when judicial proceedings are not available or efficient, offering a neutral forum free from political pressures, impartial judges with expertise in human rights selected by the parties, procedural flexibility, greater efficiency and near-universal recognition as a result of the New York Convention.
by Carolina Apolo Roque, Trainee Lawyer at CMS Portugal
With as many as nine identified approaches to the potential applicable law to the arbitration agreement, Marc Blessing, as an experienced author, arbitrator and lawyer, could not help but ask: “Are we thus faced with a magnificent confusion?” (“The Law Applicable to the Arbitration Clause” 1999, in Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series 9). This post focuses on the approach that would most likely be followed in an international arbitration seated in Portugal, shedding light on where it stands in this magnificent confusion.
Amanda is an independent arbitrator and a Consultant at Seymours, based in London. Her practice focuses on international commercial arbitration, domestic and international commercial litigation and Privy Council appellate procedure.
Her experience includes disputes arising in relation to a variety of sectors, including the recycling, construction, automotive and finance sectors. She has acted and participated in international and domestic arbitrations conducted on an ad hoc basis and under institutional rules.
By Vishakha Choudhary Research Assistant at the Chair of Prof. Dr. Marc Bungenberg, Europa-Insitut
juxtaposition of laws that seemingly operate in different domains has posed a
continual challenge to arbitration – conventionally, in the form of concerns
over arbitrability of disputes. Here, arbitrability connotes the notion that a
dispute, by its nature, is capable of being adjudicated beyond public fora,
through a private tribunal chosen by parties. This ‘objective’ arbitrability differs
from ‘subjective’ arbitrability, which is the scope of arbitrable disputes
as defined in an arbitration agreement. This post deals with objective arbitrability.
In the context of intellectual property rights (‘IPR’) disputes, concerns of objective
arbitrability stem from the impact arbitral awards may have on non-consenting
parties. Owing to insufficient legislative engagement with this issue, judicial
position on arbitrability of IPR disputes in India remains unsettled.
By Dr Sven Lange (Counsel at Busse Disputes) and Irina Samodelkina (Foreign Associate at Busse Disputes)
The modern business world
strives to increase efficiency – and the use of modern IT systems is a key tool
in that regard. One would thus expect that arbitration, which aims to resolve
disputes efficiently, would jump at the many opportunities offered by modern IT
technology to truly digitalise dispute resolution. But progress has been slow.
While arbitration practitioners widely recognise the benefits of using modern
technologies, the approach in practice is still largely based on conventional