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EA Order – A Powerful Tool or Just a Piece of Paper?

Author(s): Miloslav Kabrhel / Language(s): English / Publication Year: 0

Keywords: Emergency Arbitrator; 2012 ICC Rules; EA Order; Provisional Measure;

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.

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Pre-contractual Liability and International Commercial Arbitration

Author(s): Tomáš Kozárek / Language(s): English / Publication Year: 0

Keywords: Applicable Law; International Commercial Arbitration; Pre-contractual Liability;

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.

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Effects of the Opening of Insolvency Proceedings under the EU Regulation No. 1346/2000 on Pending Arbitration Proceedings

Author(s): Silvie Mahdalová / Language(s): English / Publication Year: 0

Keywords: Applicable Law; Arbitration Proceedings; Collective Proceedings; Cross-border Element; Insolvency Proceedings; Insolvency Regulation;

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.

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On Participation and Non-participation of Third Parties in Arbitration under Substantive Law Rules

Author(s): Bartłomiej Panfil / Language(s): English / Publication Year: 0

Keywords: Arbitration; Third Parties; Third Party Joinder; Third Party Notice; Intervention;

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.

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Some Aspects of Intellectual Property Disputes and the Question of Arbitrability

Author(s): Mária Pastorková / Language(s): English / Publication Year: 0

Keywords: Arbitrability; Intellectual Property Disputes; Moral Rights; Public Policy; Validity Disputes;

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.

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Rediscovering Competence – competence in Latvia: International Impact

Author(s): Liene Pierhuroviča / Language(s): English / Publication Year: 0

Keywords: Arbitration Agreement; Arbitration Clause; Competence – Competence; Effect;

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.

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Issue of Attribution in International Investment Disputes - The ICSID Hamester Case

Author(s): Marko Surkoš / Language(s): English / Publication Year: 0

Keywords: Attribution; Customary International Law; International Investment Dispute; State Responsibility;

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.

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International Investment Arbitration: Investor-to-State Dispute Settlement in EU Agreements

Author(s): Martin Švec / Language(s): English / Publication Year: 0

Keywords: Treaty of Lisbon; International Investment Arbitration; Dispute Resolution; International Investment Agreements; European Union;

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.

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Resolution of Cross-border Disputes between Consumers and Financial Services Providers

Author(s): Katarzyna Górecka / Language(s): English / Publication Year: 0

Keywords: Cross-border Consumer Disputes; Financial Services; Fin-Net;

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.

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Online Dispute Resolution and the Latest Development of UNCITRAL Model Law

Author(s): Pavel Loutocký / Language(s): English / Publication Year: 0

Keywords: UNCITRAL; Online Dispute Resolution; Working Group III; Electronic Commerce;

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.

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Alternative Disputes Resolution for Consumer Contracts: Challenges for EU and its Implementation in Slovakia

Author(s): Ľubica Martináková,Miroslav Slašťan / Language(s): English / Publication Year: 0

Keywords: Arbitration Law; Arbitration Clauses in Consumer Contracts; Online Dispute Resolution; New Slovak Consumer Arbitration Law;

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.

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The End of Arbitration in Bohemia?

Author(s): Naděžda Rozehnalová / Language(s): English / Publication Year: 0

Keywords: Arbitration in Bohemia; Consumer and Commercial Arbitration; COMECON countries;

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.

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Immunity Defences in Enforcement Proceedings Concerning Awards Rendered in International Commercial Arbitration Involving States and State Entities

Author(s): Anita Garnuszek / Language(s): English / Publication Year: 0

Keywords: International Commercial Arbitration; State Entities in Arbitration; Enforcement Proceedings;

Issue of state immunity against enforcement of arbitral awards in investment arbitration has always raised many concerns, especially among investors who could not be certain, whether they would receive what has been awarded to them by the arbitral tribunal. However, the purpose of this paper is to answer the question whether immunity defence may be similarly invoked in enforcement proceedings concerning awards rendered in international commercial arbitration involving states and state entities.

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Evidence Taking in International Commercial Arbitration: A Clash of Legal Cultures

Author(s): Slavomir Halla / Language(s): English / Publication Year: 0

Keywords: Discovery; Document Production; International Commercial Arbitration; Setting Aside of Arbitral Award;

Taking of evidence represents a crucial step in any legal proceeding. Nation allaws on procedure commonly contain a detailed list of rules relating to evidence taking and their evaluation. However, if one considers international commercial arbitration such a list does not exist. Among various reasons, one is simple a different point of origin when the court or tribunal assesses evidence and the scope of its taking.

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Determining Applicable Law Pursuant to WIPO Arbitration Rules - Disputes Concerning Licence Agreement

Author(s): Mária Pastorková / Language(s): English / Publication Year: 0

Keywords: Applicable Law; Arbitration; Intellectual Property; Licence Agreement; WIPO Arbitration Rules;

World Intellectual Property Organization (“WIPO”) created rules for the arbitration proceedings in intellectual property disputes. The WIPO Arbitration Rules include important norms, e.g. how to determine applicable law. The aim of this paper is to examine the concept of determining applicable law according to the WIPO Arbitration Rules and especially in the disputes concerning licence agreement. Licence agreements can differ from each other based on the different approaches and this can influence also the applicable law for the dispute.

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Questions about the Differences between Protection of Consumer and Worker from the Perspective of International and Czech Arbitration

Author(s): Kateřina Remsová / Language(s): English / Publication Year: 0

Keywords: Czech Arbitration Act; Arbitration in Employment Relationship; Consumer Arbitration; Employment Disputes of Property Nature; Protection of Employee;

Paper deals with different approaches to consumers and employees in terms of the protection granted to them in domestic and international arbitration. Czech Arbitration Act applies to both domestic and international arbitration and assumes standards of consumer protection of the EU law into the consumer arbitration. However, this act provides no protection forthe employees. In the paper on the last year of this conference I addressed the issue of arbitrability of individual employment disputes and I concluded that employment disputes of property nature only are arbitrable.

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European Public Policy and International Commercial Arbitration

Author(s): Iva Šimková / Language(s): English / Publication Year: 0

Keywords: Arbitration; European Public Policy; New York Convention;

European public policy could be described as a summary of core values of EU law. It is a legal category derived mostly from case law of the Court of Justice. The exact determination of European public policy still remains an open question. According to CJEU case law European public policy creates a part of national public policies of Member States and needs to be considered while annulling and refusing recognition of arbitral awards.

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Evidence in Arbitration Proceedings

Author(s): Lucie Zavadilová / Language(s): English / Publication Year: 0

Keywords: Arbitration Proceedings; IBA Rules of Evidence; Procedural Rules; Taking of evidence, Videoconferencing;

The taking of evidence constitutes a crucial part of arbitration proceedings. National courts generally follow elaborate rules governing the evidence taking. However, there are no strict rules of evidence in arbitration. Most modern arbitration statutes and arbitration rules now include a provision giving the parties freedom to lay down the rules for the taking of evidence. Failing such agreement, the provision grants the arbitral tribunal a wide discretion to determine all procedural matters.

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Provision on Application of Other Rules in Bilateral Investment Treaties

Author(s): Ivan Cisár / Language(s): English / Publication Year: 0

Keywords: Bilateral Investment Treaties; Application of Other Rules;

The content of bilateral investment treaties is to the great extend standardized. One of the provisions that are regularly included into the bilateral investment treaties concerns “application of other rules”. Although, the provision itself is raised by investors or host states in investment arbitration sparsely, it has been raised by the investors to overcome negative decisions on more standard provisions under the bilateral investment treaties.

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The New EU Proposal to ISDS System – Opportunity or Blind Alley?

Author(s): Tomáš Kozárek / Language(s): English / Publication Year: 0

Keywords: ISDS; Investment Court System; New Eu Approach; Right to Regulate;

The public and NGO’s have been strongly criticizing current system of ISDS in the last few months. They reproach ISDS for non-transparency and discrimination in favour of investors. The European Commission responded to this criticism by proposing new approach to ISDS system. This new approach has established few revolutionary changes whose influence to ISDS system is not quite clear.

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