Gauging the Tension Between Finality and Fairness in Arbitration: An Assessment of the Scope and Limits of “Correction” and “Interpretation” of Final Awards

By Shalini Soopramanien

“And therefore, as when there is a controversy in an account, the parties must by their own accord, set up for right Reason, the Reason of some Arbitrator…to whose sentence they will both stand, or their controversy must either come to blowes, or be undecided, for want of a right Reason constituted by Nature; so is it also in all debates of what kind soever.”

Thomas Hobbes

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Drafting an Arbitration Agreement for Contracts Related to Saudi Arabia By Abdulrahman Hammad

While much has been written about the enforceability of arbitral awards, foreign and domestic, in The Kingdom of Saudi Arabia (“The Kingdom”), articles seldom advise on the practicalities of drafting international arbitration agreements recognizable and enforceable by The Kingdom’s courts. Generally, such agreements are added to contracts entered into with a domiciliary of The Kingdom, or contracts the principal place of performance of which is within the territorial boundaries of The Kingdom. This article will focus on effectively drafting an arbitration agreement (also known as an arbitration clause) for contracts relating to The Kingdom. It will address the relevant issues to be reviewed in such agreements, and conclude with a sample agreement for Saudi-related contracts. It will not focus on the enforcement or scope of review of arbitral awards by Saudi courts.

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Tax Gross-Up Claims in Investment Treaty Arbitration by Nhu-Hoang Tran Thang

RECENTLY, INVESTORS HAVE CLAIMED “TAX GROSSED-UP DAMAGES”, or a  damage amount that takes into account the eventual taxation of the award by the defending State. Unfortunately, arbitral tribunals facing this issue have not yet seized the opportunity to express their views on the appropriateness of such claims in investment treaty arbitration[2]. The paucity of authority in both international doctrine and jurisprudence is not surprising. Not only are claims for tax gross-up in contemplation of future taxation recent, but the topic also calls for overlapping considerations of international law (where the legal basis for compensation of investors is to be found), national law of the host State (according to which tax consequences need to be assessed), complex economic calculations (which are sometimes beyond law practitioners’ and arbitrators’ full comprehension), as well as political considerations inherent to any mixed arbitration involving a sovereign State. This article attempts to identify the underlying arguments for such claims and draw the attention of practitioners and arbitrators to an issue that they are likely to face more frequently in the future.

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The enforcement of foreign arbitral awards in Brazil before and after the ratification of the New York convention by Leonardo Daldegan Lima

The enforcement of foreign arbitral awards in Brazil has always been a very controversial theme in the Brazilian legal system, given the conservatism of its courts. Since the colonial period, considering the Brazilian economic evolution and the consequent increase of international trade transactions, the legal unreliableness of the parties when trying to enforce foreign arbitral awards in Brazil demonstrated the need for modernization of its arbitral proceedings. Anxiously expected, this modernization gave its first step when the Brazilian Arbitration Law was enacted, strengthening the principle of party autonomy in the contracts. In 2002, finally attending the aspirations of the international trade community, Brazil ratified the New York Convention, which brought many changes regarding the enforcement of foreign arbitral awards in the country. This paper aims to expound some features concerning the enforcement of foreign arbitral awards in Brazil, before and after the ratification of the above-mentioned Convention by the South-American country. It also presents some important changes made in the Brazilian domestic arbitral proceedings in order to adapt the enforcement of foreign arbitral awards in Brazil to the international standards.

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THE ARBITRATOR – AS A NEUTRAL THIRD PARTY by Caroline Verbruggen

Much has been written upon arbitrators’ independence and impartiality[2].  The capacity of an arbitrator to act as a neutral party, rendering a decision which is based solely on the merits of the case, can be considered to be essential to arbitration.  At the same time, it raises many practical difficulties.  These difficulties are exacerbated in the current context of a rising number of challenges to arbitrators, which is the result, we believe, both of a broad trend towards the moralization of commerce generally, and at the same time of a more aggressive attitude of parties and counsel in international arbitration.

This article will begin with an introduction on the very notions of neutrality, impartiality and independence of the arbitrator(s), and their translation in a number of modern arbitration laws and arbitration rules (I).  The focus will then be on the practical questions called upon by this colloquium, i.e. what an arbitrator must do or must not do in connection with his obligation to be neutral and independent (II).  In a last chapter, some recent case-law will be specifically discussed (III).  We will then very briefly draw some conclusions (IV).

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