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.
Much has been written upon arbitrators’ independence and impartiality. 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).
CROATIAN LAW ON ARBITRATION AND UNICITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION
Introduction: Free-Market Democracy and International Arbitration Law
In 1991, after a short-war against Serbia, Croatia emerged as an independent nation. Its political leadership and people were eager to leave the communist past behind and integrate themselves into Western Europe. To establish itself as a free market democracy, Croatia had to completely reform its legal system, including its law on international commercial arbitration. International commercial arbitration is particularly important because of Croatia’s lucrative Adriatic Coast; the prospect of economic development along Croatia’s coast quickly proved attractive to foreign investors and international companies. Recognizing its potential as a tourist Mecca, the Croatian government realized that an established and stable legal system would reduce the perceived risk of investing in the country and attract foreign trade and investment. Subsequently, Croatia adopted a single statute that embodied its national arbitration law in 2001.
This paper via a comparison with UNICITRAL Model Law illustrates that while Croatia has implemented a sophisticated arbitration act, its eagerness to implement arbitration law may have compromised the act’s clarity and some basic rights of parties. Reform of Croatia’s 2001 Act is desirable to clarify the jurisdiction of arbitral tribunal; to explain the role of national courts in assisting arbitrations conducted abroad; to allow for service of process to addressees; and to protect against unauthorized arbitration agreements by agents.
This text will: first, discuss the judicial development of international commercial arbitration in Croatia; second, explain the scope of the Croatian law on arbitration; third, analyze Croatia’s definition of arbitration agreement; fourth, examine the ability of an arbitral tribunal to rule on its own jurisdiction; fifth, consider the role of Croatian courts in arbitrations taking place abroad; sixth, scrutinize the Croatian service of process in arbitration; and finally, explore maritime disputes under Croatian Law on Arbitration.
The “Instant Cost Order” is the practical implementation of a means to address the much discussed issue of (the lack of) cost efficiency in international arbitration. It also tackles the question of how pro-active tribunals should be in order to control party-driven arbitral proceedings.
The majority of the costs incurred in an arbitral proceeding does usually have its base in the legal and other costs of the parties. The arbitration costs, i.e., arbitrators’ fees, administrative charges of arbitral institutions, and hearing facilities will add to the total cost of an arbitration proceeding. In order to control the development of costs, it appears that parties require the tribunal’s guidance in relation to legal and other costs, which will necessarily impact the arbitration costs.
Counsel are faced with the problem that although they might wish to keep the costs on a reasonable level they have to do the outmost for their clients to present their case. This is often translated in over-sized submissions, numerous applications for purely strategic reasons, and voluminous production of documents requests.
Kluwer Arbitration Blog
Marike R.P. Paulsson
The Miami Draft: the Good Twin of the NYC
New York 1958: ‘Vivat, Floreat et Crescat the New York Convention.’ One can indeed but applaud the success of the NYC. Credit goes to a multitude of judges around the world who have applied the NYC so loyally. Yet, cracks have become visible over the last 52 years. Is there a need for a new Convention? If so, wouldn’t a new Convention, if possible at all, make things worse? Would it not be preferable to have a new interpretation instrument to enhance uniformity?
Current interpretation mechanisms of the NYC are varied, and unfortunately divergent in outcomes. We are far from a uniform interpretation. The textual imperfections of the Convention have come to light in courtrooms around the world. Of course, there is no such thing as a perfect Convention. The drafters of the Convention in 1958 could never have been able to produce a text that would foresee the issues which we confront in 2010, no more than the founding fathers of the US Constitution could have anticipated the world wide web. How could the original drafters of the NYC have predicted a worldwide multiform interpretation of the Convention? That would be as if one would have expected an IT expert in the year 1958 to be capable of providing an analysis of the Blackberry. At the occasion of celebrating the Convention’s 40th birthday, its founding father Pieter Sanders remarked: ‘nothing is perfect in this world. After 40 years of practice with the Convention its text could certainly be improved.’ However, an amendment to the Convention is most likely not possible, nor will a Protocol or second Convention be desirable.