COFOLA INTERNATIONAL 2015: Current Challenges to Resolution of International (Cross-border) Disputes. Conference Proceedings
COFOLA INTERNATIONAL 2015: Current Challenges to Resolution of International (Cross-border) Disputes. Conference Proceedings
Contributor(s): Klára Drličková (Editor)
Subject(s): Politics / Political Sciences, Politics, Law, Constitution, Jurisprudence, Essay|Book Review |Scientific Life, Constitutional Law, International Law, International relations/trade, Conference Report, Law on Economics, EU-Accession / EU-DEvelopment, EU-Legislation
Published by: Masarykova univerzita nakladatelství
Keywords: International Commercial Arbitration; EA Order; International Investment Arbitration; Dispute Resolution; Arbitration in Bohemia; International Law;
Summary/Abstract: The conference “COFOLA = Conference for Young Lawyers” is annualy organized by the Masaryk University, Faculty of Law from 2007. The main aim of this conference is to give floor to the doctoral students and young scientists at their early stage of career and enable them to present the results of their scientific activities. Since 2013 COFOLA has been enriched by special part called “COFOLA INTERNATIONAL”. COFOLA INTERNATIONAL focuses primarily on issues of international law and the regulation of cross-border relations and is also oriented to doctoral students and young scientists from foreign countries. COFOLA INTERNATIONAL contributes to the development of international cooperation between students and young scientists from different countries.
- E-ISBN-13: 978-80-210-8681-4
- Page Count: 298
- Publication Year: 2015
- Language: English
Extension of Arbitration Clauses over Non-signatories
Extension of Arbitration Clauses over Non-signatories
(Extension of Arbitration Clauses over Non-signatories)
- Author(s):Slavomir Halla
- Language:English
- Subject(s):Civil Law, International Law, Commercial Law, Court case
- Page Range:17-35
- No. of Pages:19
- Keywords:Arbitration Agreement; Assignment; Consent; Estoppel; Extension; Group of Companies; Piercing of the Corporate Veil;
- Summary/Abstract:Consent, the final frontier. International commercial arbitration is deemed to be a dispute resolution mechanism embedded in consent of the parties involved. Presentation of such a mutual understanding is done through an arbitration agreement. Therefore, it is often quoted that the arbitration is a creature of such a contract. However, the aim of this paper is to analyse whether its contractual, indeed consensual, nature is the only element which the courts use to identify the subjects who may compel or must be compelled to arbitrate disputes, or whether they employ other considerations as well.
The Interpretation of Contracts in ICC Arbitration
The Interpretation of Contracts in ICC Arbitration
(The Interpretation of Contracts in ICC Arbitration)
- Author(s):Pavlína Janečková
- Language:English
- Subject(s):International Law, International relations/trade, Commercial Law
- Page Range:36-51
- No. of Pages:16
- Keywords:ICC Arbitration; the Interpretation; the UNIDROIT Principles;
- Summary/Abstract:In international commercial disputes it could be more difficult to determine the real and common will of both parties by reference to a single applicable national law (especially if there was no choice of law). In arbitration there is a larger space for the approach different from the approach of the state courts, because arbitrator’s position is different from that of state courts, which are bound to apply the conflict of laws rules. Opposite to that the international arbitrator often does not have lex fori and he can apply a system of rules different from the national law which would be applied according to the conflict of laws rules.
EA Order – A Powerful Tool or Just a Piece of Paper?
EA Order – A Powerful Tool or Just a Piece of Paper?
(EA Order – A Powerful Tool or Just a Piece of Paper?)
- Author(s):Miloslav Kabrhel
- Language:English
- Subject(s):International Law, International relations/trade, Commercial Law
- Page Range:52-66
- No. of Pages:15
- Keywords:Emergency Arbitrator; 2012 ICC Rules; EA Order; Provisional Measure;
- Summary/Abstract:The ICC Rules underwent several changes with their 2012 amendments. One of them are the emergency arbitrator provisions which provide for a whole new type of interim measure – the EA order. As it is a new way of obtaining interim measure, its exact legal status remains unclear, especially with regards to its possible enforcement under the New York Convention or national legislation. Therefore, this paper will firstly address the issue whether the EA order is – as suggested by several authorities – a specific type of contract, or can be considered a judicial decision.
Pre-contractual Liability and International Commercial Arbitration
Pre-contractual Liability and International Commercial Arbitration
(Pre-contractual Liability and International Commercial Arbitration)
- Author(s):Tomáš Kozárek
- Language:English
- Subject(s):International Law, International relations/trade, Commercial Law
- Page Range:67-77
- No. of Pages:11
- Keywords:Applicable Law; International Commercial Arbitration; Pre-contractual Liability;
- Summary/Abstract:Pre-contractual liability (culpa in contrahendo) is a challenging and demanding institute of law by itself. It is not recognized in every legal order in the world and the construction of it can vary across nations. This situation can become even more complicated, when we start to think about pre-contractual liability in connection to international commercial arbitration. Is it even possible to solve the problem of existence of the pre-contractual liability in arbitration? In case of positive answer, what is subsequently the applicable law? The aim of this paper is to find the answers to these questions with the help of ICC awards database and available literature.
Effects of the Opening of Insolvency Proceedings under the EU Regulation No. 1346/2000 on Pending Arbitration Proceedings
Effects of the Opening of Insolvency Proceedings under the EU Regulation No. 1346/2000 on Pending Arbitration Proceedings
(Effects of the Opening of Insolvency Proceedings under the EU Regulation No. 1346/2000 on Pending Arbitration Proceedings)
- Author(s):Silvie Mahdalová
- Language:English
- Subject(s):International Law, EU-Accession / EU-DEvelopment, EU-Legislation
- Page Range:78-92
- No. of Pages:15
- Keywords:Applicable Law; Arbitration Proceedings; Collective Proceedings; Cross-border Element; Insolvency Proceedings; Insolvency Regulation;
- Summary/Abstract:This paper deals with effects of the opening of insolvency proceedings under the Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (“Insolvency Regulation”), on pending arbitration concerning asset forming part of the insolvent estate.The present article offers determination of collective character of insolvency proceedings compared to the private character of arbitration brought by an individual creditor and emphasizes the necessity to regulate their mutual interaction. The author analyzes relevant provisions of the Insolvency Regulation and its revised version in order to verify whether its framework establishes rules for determination of the law applicable to effects of the insolvency proceedings on pending arbitration.
On Participation and Non-participation of Third Parties in Arbitration under Substantive Law Rules
On Participation and Non-participation of Third Parties in Arbitration under Substantive Law Rules
(On Participation and Non-participation of Third Parties in Arbitration under Substantive Law Rules)
- Author(s):Bartłomiej Panfil
- Language:English
- Subject(s):Civil Law, International Law, International relations/trade, Commercial Law
- Page Range:93-112
- No. of Pages:20
- Keywords:Arbitration; Third Parties; Third Party Joinder; Third Party Notice; Intervention;
- Summary/Abstract:The paper deals with mechanisms well-established in civil litigation which may face the real obstacles in arbitration due to its contractual nature and its implications. Third party joinder and intervention are procedural mechanisms which have very important goals ensuing from substantive law. Thus, their application shall be made with their consequences borne in mind. The author focuses on third parties participation in arbitration in capacities other than parties to it, i.e. side intervenor or similar and presents some remarks on third party notice of arbitration and on substantive law provisions providing an obligation to inform third person about the very fact of a dispute and its resolution.
Some Aspects of Intellectual Property Disputes and the Question of Arbitrability
Some Aspects of Intellectual Property Disputes and the Question of Arbitrability
(Some Aspects of Intellectual Property Disputes and the Question of Arbitrability)
- Author(s):Mária Pastorková
- Language:English
- Subject(s):International Law, Ethics / Practical Philosophy
- Page Range:113-126
- No. of Pages:14
- Keywords:Arbitrability; Intellectual Property Disputes; Moral Rights; Public Policy; Validity Disputes;
- Summary/Abstract:Intellectual property disputes have become an actual issue thanks to the technological progress. The possibility of solving dispute with an alternative dispute resolution e.g. arbitrationis even more appealing. The diversity of the intellectual property rights is raising the question of arbitrability which has already initiated many expert discussions. This paper is focused on examination of current perception on arbitrability of intellectual property disputes in international arbitration and questions which can be created by arbitrability. The main obstacles are especially disputes concerning validity and the moral rights.
Rediscovering Competence – competence in Latvia: International Impact
Rediscovering Competence – competence in Latvia: International Impact
(Rediscovering Competence – competence in Latvia: International Impact)
- Author(s):Liene Pierhuroviča
- Language:English
- Subject(s):Constitutional Law, International Law, Commercial Law
- Page Range:127-139
- No. of Pages:13
- Keywords:Arbitration Agreement; Arbitration Clause; Competence – Competence; Effect;
- Summary/Abstract:The 28 November 2014 judgment of the Constitutional Court of Latvia has re-defined the notion of competence – competence of arbitral tribunals in Latvia and the division of jurisdiction between state and arbitration courts in disputes regarding the effect of arbitration agreement. The challenge of arbitration agreements at state courts, which until the judgment was virtually impossible, has now been given the green light. This marks an important step ahead towards internationally settled standards for the Latvian legal regulation of arbitration which has continually been criticized for lack of adherence there to.
Arbitrability of Individual Employment Disputes
Arbitrability of Individual Employment Disputes
(Arbitrability of Individual Employment Disputes)
- Author(s):Kateřina Remsová
- Language:English
- Subject(s):Civil Law, International Law
- Page Range:140-153
- No. of Pages:14
- Keywords:Arbitration; Arbitrability; Individual Employment Disputes; Arbitration Act;
- Summary/Abstract:The paper deals with arbitrability of individual employment disputes for hearing and decision in the arbitration. The Czech Arbitration Act applies to both national and international arbitration and admits to hear and to decide disputes of property nature only. Claims for various property performances from employment relations are therefore generally considered to be arbitrable. In the case of disputes arising from employment relations with a status character arbitrability is questionable. The aim of this paper is to appraise the admissibility of the arbitration in employment relations. Although the employment relations have a property basis, disputes over the status of these relationships have a fundamentally different objective, especially a decision on whether a particular person is or is not in the position of the employee.
Are the Days of the “Italian Torpedo” Numbered?
Are the Days of the “Italian Torpedo” Numbered?
(Are the Days of the “Italian Torpedo” Numbered?)
- Author(s):Pavel Šidla
- Language:English
- Subject(s):Civil Law, International Law, EU-Legislation
- Page Range:154-164
- No. of Pages:11
- Keywords:Arbitration; Brussels I bis Regulation; Lis pendens Rule;
- Summary/Abstract:The paper examines the interaction between arbitration and court proceedings from the perspective of European international procedural law and the phenomenon of the “Italian torpedo”. It deals mainly with two questions, namely what impact Brussels I bis Regulation will have on arbitrations in the EU, whether the “West Tankers’ case” was really decided wrongly, or rather, whether the CJEU had any other option, if we take the so called “Brussels’ effect” into consideration. Another important question this paper deals with is whether the “Italian torpedo” can be under Brussels I bis’ regime torpedoed, by allowing to enforce an award obtained in parallel arbitral proceedings and effectively “sidestep” the CJEU’s controversial decision in the West Tankers litigation, as it was the case in High Court’s decision in the West Tanker’s case.
Enforcement of Foreign Annulled Arbitral Awards
Enforcement of Foreign Annulled Arbitral Awards
(Enforcement of Foreign Annulled Arbitral Awards)
- Author(s):Iva Šimková
- Language:English
- Subject(s):Civil Law, International Law
- Page Range:165-175
- No. of Pages:11
- Keywords:Arbitration; Foreign Arbitral Awards; Annulled Arbitral Awards; Enforcement;
- Summary/Abstract:This paper focuses on the topic of recognition and enforcement of foreign arbitral awards which have been annulled in the country of their origin. The questions arising from this issue will be answered in the light of New York Convention and by the perspective of the Czech legal regulation. Firstly, it will briefly introduce two leading theories of arbitration since their proper understanding is necessary to follow later text. Secondly, it will examine content of Art. V New York Convention, namely the provision of Art.V (1) (e) which covers the problem of foreign annulled arbitral award.
Investor´s Nationality as a Condition Ratione Personae in International Investment Arbitration under ICSID Convention
Investor´s Nationality as a Condition Ratione Personae in International Investment Arbitration under ICSID Convention
(Investor´s Nationality as a Condition Ratione Personae in International Investment Arbitration under ICSID Convention)
- Author(s):Soňa Ondrášiková
- Language:English
- Subject(s):International Law, International relations/trade, Law on Economics, Commercial Law
- Page Range:177-190
- No. of Pages:14
- Keywords:Bilateral Investment Treaties (BIT); Dual Nationality; Investor; ICSID; Nationality Planning; National Gas S.A.E. v. Arab Republic of Egypt; Phoenix Action;
- Summary/Abstract:This paper focuses on exploring how nationality of an investor (either natural or legal person) plays a crucial role in establishing ratione personae jurisdiction of arbitration tribunal in investment disputes. The paper examines two current challenges in assessing the jurisdiction ratione personae: i) specific cases when an investor (natural person exercising effective control in the investment structure) is holder of nationalities, one of them being a nationality of a host state and ii) the so-called nationality planning, which refers to planning a structure of a legal entity (ownership and shareholder structure) so that the entity can benefit from the most suitable investment protection regime.
Issue of Attribution in International Investment Disputes - The ICSID Hamester Case
Issue of Attribution in International Investment Disputes - The ICSID Hamester Case
(Issue of Attribution in International Investment Disputes - The ICSID Hamester Case)
- Author(s):Marko Surkoš
- Language:English
- Subject(s):International Law, Commercial Law
- Page Range:191-205
- No. of Pages:15
- Keywords:Attribution; Customary International Law; International Investment Dispute; State Responsibility;
- Summary/Abstract:In the field of foreign investment, matters of state responsibility and attribution play a very important role. This article addresses the attribution issues of state responsibility in an investment dispute case under International Centre for Settlement of Investment Disputes (ICSID) - Gustav F W Hamester GmbH & Co KG v. Republic of Ghana. Research within this article focuses on summarizing the key elements of attribution relating to state responsibility within the work of the International Law Commission (ILC) and tries to give an overview of the investment case and author’s opinion and conclusions on the legal arguments presented in the final decision, relating to attribution.
International Investment Arbitration: Investor-to-State Dispute Settlement in EU Agreements
International Investment Arbitration: Investor-to-State Dispute Settlement in EU Agreements
(International Investment Arbitration: Investor-to-State Dispute Settlement in EU Agreements)
- Author(s):Martin Švec
- Language:English
- Subject(s):International Law, International relations/trade, EU-Accession / EU-DEvelopment, EU-Legislation
- Page Range:206-218
- No. of Pages:13
- Keywords:Treaty of Lisbon; International Investment Arbitration; Dispute Resolution; International Investment Agreements; European Union;
- Summary/Abstract:The Treaty of Lisbon conferred new exclusive competence in the field of foreign direct investments on the European Union. It seems that 50-year-old fragmented system of investment law, based on bilateral investment treaties, took a new direction towards a comprehensive European international investment policy. Popularity and efficiency of international investment agreements derive mainly from the concept of investor-state dispute resolution (investment arbitration). New competences of the EU significantly impact on the resolution of disputes.
Resolution of Cross-border Disputes between Consumers and Financial Services Providers
Resolution of Cross-border Disputes between Consumers and Financial Services Providers
(Resolution of Cross-border Disputes between Consumers and Financial Services Providers)
- Author(s):Katarzyna Górecka
- Language:English
- Subject(s):International Law, International relations/trade, Commercial Law
- Page Range:220-242
- No. of Pages:23
- Keywords:Cross-border Consumer Disputes; Financial Services; Fin-Net;
- Summary/Abstract:Legal issues of financial services are distinctly unclear for most consumers. Measures that are adopted by the European Union in the area of financial services are not always sufficient to prevent consumers from disputes. Apart from regulating minimum standards of the offered services or providing consumers with protection against unfair terms in financial contracts, there is another challenge. What consumers also need is to ensure effective cross-border alternative dispute resolution. While contracts with providers from another Member State are getting more and more popular because of freedoms of internal market, consumers may still have problems with pursuing their claims in case of dispute. It is possible to overcome this problem due to cross-border initiatives inter alia FIN-NET.
Online Dispute Resolution and the Latest Development of UNCITRAL Model Law
Online Dispute Resolution and the Latest Development of UNCITRAL Model Law
(Online Dispute Resolution and the Latest Development of UNCITRAL Model Law)
- Author(s):Pavel Loutocký
- Language:English
- Subject(s):International Law, ICT Information and Communications Technologies, Commercial Law
- Page Range:243-256
- No. of Pages:14
- Keywords:UNCITRAL; Online Dispute Resolution; Working Group III; Electronic Commerce;
- Summary/Abstract:The influence of modern technologies (especially of the Internet) has been enormous in last two decades. It had crucial impact mainly on the swift growth of cross-border electronic commerce. Traditional judicial mechanisms were unable to offer proportionate solutionto deal with e-commerce disputes. Such situation had opened up an area for Online Dispute Resolution. Online Dispute Resolution rules are however being developed ad hoc recently. The necessity to unify this shattered area was foreseen by the UNCITRAL which had charged Working Group III with creation of the model law.
Alternative Disputes Resolution for Consumer Contracts: Challenges for EU and its Implementation in Slovakia
Alternative Disputes Resolution for Consumer Contracts: Challenges for EU and its Implementation in Slovakia
(Alternative Disputes Resolution for Consumer Contracts: Challenges for EU and its Implementation in Slovakia)
- Author(s):Ľubica Martináková, Miroslav Slašťan
- Language:English
- Subject(s):EU-Legislation, Commercial Law
- Page Range:257-282
- No. of Pages:26
- Keywords:Arbitration Law; Arbitration Clauses in Consumer Contracts; Online Dispute Resolution; New Slovak Consumer Arbitration Law;
- Summary/Abstract:This paper focuses on current challenges in arbitration law in the context of consumer contracts. It starts with a brief introduction on need to regulate this very specific area by considering arguments for and against the arbitration clauses in consumer contracts in general. The authors then move onto short history excursion on “prohibition” of alternative dispute resolution in the EU with emphasis on current EU legal framework - Directive 2013/11/EU on alternative dispute resolution for consumer disputes (the “Directive”) and Regulation (EU) No. 524/2013 on online dispute resolution for consumer disputes.
The End of Arbitration in Bohemia?
The End of Arbitration in Bohemia?
(The End of Arbitration in Bohemia?)
- Author(s):Naděžda Rozehnalová
- Language:English
- Subject(s):Constitutional Law, Commercial Law
- Page Range:284-295
- No. of Pages:12
- Keywords:Arbitration in Bohemia; Consumer and Commercial Arbitration; COMECON countries;
- Summary/Abstract:The title of this paper actually paraphrases the name of a Czech comedy. Just like in that film, it is a slight exaggeration: the possibility of resolving disputes through arbitration is not going to disappear in the Czech Republic. However, there are symptoms pointing to the existence of certain issues. They hinder and complicate the proceedings and the enforcement of the ensuing arbitral award to such an extent that, in a certain time frame, theycould impact the choice of arbitration as a way of resolving disputes.
