The aim of the article is to present a highly controversial issue whether the legal effects of prejudicial awards of either common court or arbitration court shall be binding for another arbitration tribunal resolving the same dispute between the same parties. This issue is broadly disputable, essentially after the Polish Supreme Court delivered two contrary judgments regarding this matter. Arguably, it remains unclear whether art. 365 of the Polish Code of Civil Procedure is applicable not only to common courts but also to arbitration tribunals. Moreover, because of the preliminary meaning of art. 1184 of the CCP, it is also questionable whether arbitration courts are bound by some provisions of civil procedure, specifically art. 365 of the CCP. The aim of this article is to analyze and address these legal issues as well as to explain why, in my opinion, arbitration tribunals shall eventually be bound by earlier awards — either those delivered by the common courts or arbitration tribunals.
In the era of progressive economic and trade cooperation at a national and international level, the number of disputes related to them is increasing. Statistics overviewing the activity of Polish courts dealing with proceedings in commercial cases confirm the fact. The development of alternative disputes resolution instruments, in particular regarding arbitration and mediation, gives rise to hope for remedying the situation. At the moment their scope is of little significance related to the entirety of legal transactions. Moreover, there are areas virtually devoid of them. The Podlaskie region is one of such areas. Recently, collaboration of the Chamber of Industry and Commerce in Bialystok and the Faculty of Law of University of Bialystok resulted in the launch of the Arbitration and Mediation Center of the Podlaskie region. As a part of the project, mediation services were commenced and further steps to launch the Eastern Court of Arbitration were taken. It seems that the undertaking can bring satisfactory results for socio-economic trading. The assumption will be possible to be verified in practice in the nearest future.
Arbitration is frequently described as “justice for gentlemen,” which can suggest an absence of procedural issues of such significance to the outcome of the case as in the case of proceedings before common courts. Meanwhile, experience shows that only the types of disputed procedural issues differ slightly in arbitration, while their impact on the outcome is also significant. Of the formal issues, the most important seems to be the status of the arbitrators adjudicating in the case. Given that, in practice, arbitration is of a single instance and has a limited, exhaustively itemized number of premises specified in Article 1206 of the Civil Procedures Code for lodging a complaint to set aside an arbitral award, strict adherence by arbitrators to the principles of impartiality and independence is of fundamental importance. A possible breach of these principles can undermine the confidence of the parties not only in the arbitral panel in a specific case, but also in arbitration in general. Consequently, a possible attempt to remove an arbitrator, as a rule, constituting the manifestation of efforts to eliminate errors made while the arbitral panel was being constituted, is considered only a partial remedium. Therefore, the objective of the study is to analyse the key formal expectations of arbitrators, as well as consider selected issues related to the institution of the removal of an arbitrator - understood as a guarantee of his impartiality and independence. The intention of this analysis is to help define the status of an arbitrator in arbitration proceedings.
This study addresses the issue of recognition and enforceability of foreign arbitral awards, both from the point of view of regulation by national law and the New York Convention. The analysis is based on the provision of Article 1215 k.p.c. and by Article V of the New York Convention. Considerations in the context of this study have been subjected to the reasons for refusal of recognition or enforcement of an arbitration finding. At the same time drew attention also to the relationship between Article 1215 k.p.c. and the New York Convention of 1958. In addition, attention was paid to the question of what the formal requirements must be met in order to be properly filed application to the court of public recognition or enforcement of an arbitration.
This paper discusses the use of consensual dispute resolution for the purpose of antitrust damage claims as introduced by the Directive. It presents these type of claims in a broader context of arbitration (or ADR), in comparison with traditional claim settling before a state court. Particular focus is on selected CEE countries and their implementation of the Directive, serving as an example of the transposition of the Directive’s rules (Article 18 and 19) into national systems in the area of consensual dispute resolution. Specific institutions intended to encourage consensual resolution included in the Directive (and transposed into national systems) are being commented on as well. Lastly, the paper briefs on the advantages of ADR in general, and concludes that even post-Directive, ADR remains attractive as a complimentary instrument to public enforcement and state judiciary enforcement.
The aim of the paper is to present the subject matter related to the procedure of resolving disputes arising in connection with implementation of agreements concluded on the basis of contract models published by the international federation FIDIC in 1999 Red and Yellow Book. The intention of the authors of the FIDIC templates was to apply an autonomous multistage procedure (the so-called multi-step clause) for resolving disputes based on arbitration without taking the matter to court. However, the application of the procedure proposed by FIDIC raises controversies of legal and factual nature. The problems concern, in particular: the nature, immediate enforceability, contestability of decisions issued by the Dispute Adjudication Board (DAB) and methods of their reinforcement. Other issues concern the absence of ‘standing’ or ‘full-term’ Adjudication Board and the right to arbitration in case when a party violates the internal dispute resolution procedure described in the contract, both for reasons dependent on and beyond its control. The publication is of legal and comparative nature and contains the analysis of related jurisprudence of civil law systems of selected countries.
The article analyzes The Philippines v. China arbitration case and its geopolitical implications for further bilateral relations between USA and China. Additionally, it examines the viewpoints of Chinese leaders. Term arbitration refers to a process in which a party submits a “dispute” to an unbiased, independent third party. Its main goal is to settle and conclude the disputes presented. The Permanent Court of Arbitration is an intergovernmental organization established in 1899 that designates arbitral tribunals to resolve disputes between and among nations. It is based in The Hague, Netherlands, and currently presides over the arbitration case. Philippines brought the case before the tribunal to dispute China’s claim of “indisputable sovereignty” over almost the entire South China sea through its “nine-dash line” claim. The five arbitrators were assigned to the Judge Thomas A. Mensah (President), Judge Jean-Pierre Cot, Judge Stanislaw Pawlak, Professor Alfred H. Soons, and Judge Rüdiger Wolfrum. It will be argued that China has had a bad relationship with all neighbors since 1974, when China used force against South Vietnam in the South China Sea in order to recapture the Paracel Islands and against a unified Vietnam in 1988 to seize Johnson Reef and five more features, massacring a party of Vietnamese flag-bearers. In 1994, China seized Mischief Reef unobserved and it took months before the world noticed. Until then, China was the only claimant to have no permanent presence in the area. There are already clear signs that China is using its military power to rebuke the arbitration. Admiral Wu Shengli, the Commander of the Chinese navy, just hosted the US Chief of Naval Operations, Admiral John Richardson, at the Chinese Navy Headquarters on July 18 2016, following the successful participation of Chinese warships in the major US RIMPAC exercise in the Pacific. He made clear that the militarization of China’s artificial islands will continue so that their defense corresponds to the “level of threats”. After a PLA Air Force patrol close to Scarborough Shoal made the headlines of most Chinese newspapers yesterday, a military spokesman announced that air patrols would become a regular occurrence now. The Tribunal issued its Award on July 16 2016 after several months of hearings and submission of documents. China was absent throughout the proceedings, refusing to recognize the case. The Tribunal concluded that there was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line The Spratly Islands and its many reefs are being claimed by China under its “nine-dash line” claim that covers nearly the entire South China Sea including parts of the Philippines’ Exclusive Economic Zone (hereafter referred to as EEZ). China insisted it has historic rights in asserting its ownership of the region believed to be rich in natural gas resources and also a vital trade route for international cargo ships The 2012 Scarborough Shoal standoff was one of the factors that prompted the Philippines to file a case against China. Tensions between the two countries escalated when Chinese surveillance ships prevented Philippine authorities from apprehending Chinese vessels found poaching endangered Philippine marine species at the shoal. The dispute over maritime features in the South China Sea has been ongoing for decades prior and involved other Southeast Asian countries such as Vietnam, Malaysia, Indonesia. On January 23, 2013, the Philippine government (hereafter referred to as Manila) announced that it had initiated an arbitration case against the People’s Republic of China in accordance with the dispute settlement provisions of the United Nations Convention on the Law of the Sea concerning a range of issues relevant to the ongoing sovereignty dispute in the South China Sea between the two nations.Manila’s case was submitted for arbitration to a five-judge panel formed under the “Settlement of Disputes” process contained in Part XV of UNCLOS and hosted by the Permanent Court of Arbitration (PCA) in The Hague. The United Nations Convention on the Law of the Sea is an international treaty that defines the limits of a nation’s maritime sovereignty claims. This convention was ratified by both the Philippines and China. Under its provisions, areas within 200 nm from the country’s baselines would be part of the EEZ. UNCLOS states three basic maritime features: Islands under the sovereignty of a country are entitled to a 12 nm (approximately 22 kilometers) territorial sea and a 200 nm (approximately 370 km) exclusive economic zone (EEZ). The state may exclude foreign entities within its territorial sea and has the sole right to exploit resources found within the EEZ Since the initiation of the arbitration case, China has conducted several massive reclamation projects to turn submerged reefs into artificial islands capable of hosting military structures and equipment. The conclusion offers general thoughts on the larger implications of the findings for the management of maritime disputes involving China and especially U. S.-China security relations.
The objective of this research paper is to explore and analyse mediation in the People’s Republic of China and in the Republic of China (Taiwan). The author also investigates the historical, philosophical and social origin of mediation and its development since the Han Dynasty. Mediation has a long tradition in China, and its importance can be traced back to the philosophy of Confucianism. Nowadays mediation is known as the key to resolving all disputes and linking it to the “harmonious society” political doctrine. There are currently a few types of mediation practices in China: mediation by People’s Mediation Committees outside the court, judicial mediation in civil disputes and minor criminal cases inside the court, mediation and arbitration of rural land contract disputes or mediation and arbitration in labour disputes. The importance of mediation is demonstrated by Article 111 of the Constitution of the People’s Republic of China, which provides that “People’s Mediation Committees are a working committee under grassroots autonomous organisations – the Residents Committee and the Villagers Committee – whose mission is to mediate civil disputes.” The Committees and the courts should also popularise, through mediation and arbitration, the laws and the policy and educate citizens to abide by the laws and respect universally accepted morals. As can be seen, owing to the government’s guidance on mediation procedures the number of cases settled through mediation has markedly increased. The statistics show that the parties not only resolve their dispute but are also willing to resort to mediation again. The high success rate of mediation is, among other things, due to the fact that it is a safe and neutral process, and the mediators’ role in facilitating resolution does not impose a solution. Another advantage of mediation is speed and effectiveness as well as a reduction of costs. This article also discusses the Taiwanese experience with mediation, as well as its development. To sum up it may be said that mediation in the People’s Republic of China and in the Republic of China (Taiwan) functions well and is increasingly winning trust of citizens.
Article 2 §3 of the Code of Civil Procedure provides for the civil cases not to be heard through court proceedings where specific provisions allocate them to the competence of other bodies. The activity of extra-judicial authorities based on hearing the cases is also allowed under constitutional law, provided that they are authorized to act by the statues and the legality of their decisions is controlled by the courts. Currently, extra-judicial proceedings include: arbitration, conciliation before the committee on labor, before the provincial committee adjudicating on medical events and extra-judicial mediation. The analysis of the rules governing these proceedings shows that despite the fact that they are carried out by different bodies and in different matters, they have certain common features, characteristic of civil procedure in general. These features include, among others, subjecting the proceedings to the principle of inter partes, equality and availability, the ability to enforce the judgment or settlement by means of coercive measures permitted under the law as well as the impartiality of the authority conducting the proceedings. It seems to be justified to state that extra-judicial civil proceedings constitute a group of proceedings whose purpose is to hear the case concerning civil relations, family and custody law as well as labor law by way of judgment or by agreement of the parties, pending before an impartial authority having or not having the competence to hear a case, acting, in principle, (apart from, as it seems, the proceedings before the provincial committee adjudicating on medical cases) under the control of the court.
This work presents the most important legal issues related to dispute resolution on the sports level. The author, recalling the procedure connected with world’s most important sports court, intends to show the significant advantages of the arbitration procedure, which is a reformative way of resolving all antagonisms that bind entities involved in the fields of physical activity. The aim of the work is to show legal problems on the part of a person interested in the world of sport. The work uses monographic and comparative methods, which allowed for a me- ticulous presentation of current formal and legal problems. The analysis carried out as part of the following work shows that the existence of an independent con- ciliation court dealing with sporting matters is necessary to be able to keep the area of sports competition away from the sphere of influence of people whose one goal is to use sport as an important field to expand their own negative interests all entourage. Through the functioning of specialized legal forms and institutions that will watch over their observance, it is possible to create from professional physical activity matter that brings legal and fair values that can shape young generations for whom clean and healthy competition will become a priority
Mediation is the process by which a neutral third-party works with disputing parties to assist them in reaching an acceptable, voluntary settlement of their dispute. Mediators are often faced with competing demands over and above those of the dispute itself. For example, establishing and maintaining control of the mediation process without appearing to bully the disputants, persuading a party to reexamine it's position without appearing to lose their neutrality, and convincing a party that the present offer of settlement is the best possible, given the circumstances, without appearing to be determined to reach closure at all costs.The present paper examines data from labor, divorce, and community mediations (both transcripts and reports from the mediators) to show how mediators reduce tensions like those mentioned above through various devices such as establishing common ground, reframing the issue, use of metaphorical examples, and reliance on innuendo, ambiguity, and equivocation.
With the unprecedented occurrence of withdrawal of the United Kingdom from the European Union, the uttermost common law country positions itself to the feasibility of reclaiming the once lost opportunities. This article aspires to examine anti-suit injunctions as a measure to protect the will of the contractual parties by issuing of such in the court’s supportive power to the arbitration proceedings. The current stance regarding the anti-suit injunction, as well as the possibility to its overcome is discussed in order to provide arguments against the UK’s accession to the Lugano Convention and in favour of the accession to the Hague Convention. All this is presented to determine whether the UK’s withdrawal from the EU provides for advancement in the favourability of arbitration with its seat in the UK.
Lawyers involved in arbitration have doubts about the accuracy of the direction in which the current practice of arbitration is proceeding. One of the main practical issues of arbitration was the issue of conflicts of interest, arbitration costs, the ethos of arbitration. In Poland, arbitration proceedings took too long. The author partly criticizes the provisions of the Act of 10 September 2015 on the amendment of certain acts in connection with the support of amicable dispute resolution methods, which among others concerns the shortening of the post-arbitration proceedings. The legislator adopted defective criteria for determining the venue of court of appeal in cases related to the complaint to set aside the arbitration award.
The activity of the Holy See in favor of peace has developed throughout History. This work focuses on the work developed by Pope Benedict XVI in this matter. The first part refers to the pacification activity carried out by Benedict XVI through diplomatic relations, and other international activities such as mediation, good offices and international arbitration, although the brevity of his pontificate only allowed him to continue with the diplomatic relations and the signing of international agreements with the States. The second part focuses on the many appeals for peace that Benedict XVI has made in many occasions during his pontificate, with the Diplomatic Corps, the ambassadors of the different States, the Heads of State, receiving the bishops in ad limina visit, or during the Angelus prayer in St. Peter’s Square. This work has been done inside the Proyecto I+D+I DER2015-65840-R (MINECO/FEDER) “Diversidad y Convivencia: los derechos humanos como guía de acción”, del Ministerio de Economía y Competitividad y el Fondo Europeo de Desarrollo Regional.
While the enforceability of arbitration clauses in consumer contracts, notably credit card contracts, has been well developed in some jurisdictions like the United States and the Czech Republic, the issue has not yet arisen in Kuwait, largely because the development of the credit card sector is relatively new, but, more importantly, because the arbitration system has generally been limited in practice to specific contexts that have not yet included consumer disputes in relation to credit cards. This article examines both the likelihood that Kuwaiti financial institutions will adopt pre-dispute mandatory arbitration clauses in credit card agreements in the near future, and the likelihood that those clauses, often significantly unfair to consumers, will be enforced under current Kuwaiti laws. It proposes amendments to relevant Kuwaiti legislation to mitigate the harshness of the enforcement of these clauses in the consumer credit card context and to provide greater balance between the interests of card issuers and cardholders.
The article discusses alternative dispute resolution methods. Alternative Dispute Resolution (ADR): mediation, conciliation, negotiation and arbitration (also known as arbitration). Two of the indicated methods are regulated in Polish law, i.e. mediation and arbitration. The place of mediation and arbitration in the Polish legal system, principles of mediation proceedings as well as a wide range of applications of such solutions both in the criminal system and in the broadly understood field of social life were discussed.
Research background: Covid-19 has affected the global economy and has had an inevitable impact on capital markets. In the week of February 24-28, 2020, stock markets crashed. The index FTSE 100 decreased 13%, while the indices DJIA and S&P 500 fell 11-12%, the biggest drop since the 2007-2008 financial and economic crisis. It is therefore of interest to test the random walk hypothesis in developed capital markets, European and also non-European, in order to understand the different predictabilities between them. Purpose of the article: The aim is to analyze capital market efficiency, in its weak form, through the stock market indices of Belgium (index BEL 20), France (index CAC 40), Germany (index DAX 30), USA (index DOW JONES), Greece (index FTSE Athex 20), Spain (index IBEX 35), Ireland (index ISEQ), Portugal (index PSI 20) and China (index SSE) for the period from December 2019 to May 2020. Methods: Panel unit root tests of Breitung (2000), Levin et al. (2002) and Hadri (2002) were used to assess the time series stationarity. The test of Clemente et al. (1998) is used to detect structural breaks. The tests for the random walk hypothesis follows the variance ratio methodology proposed by Lo and MacKinlay (1988). Findings & Value added: In general, we found mixed confirmation about the EMH (efficient market hypothesis). Taking into account the conclusions of the rank variance test, the random walk hypothesis was rejected in the case of stock indices: Dow Jones, SSE and PSI 20, partially rejected in the case indices: BEL 20, CAC 40, FTSTE Athex 20 and DEX 30, but accepted for indices: IBEX 35 and ISEQ. The results also show that prices do not fully reflect the information available and that changes in prices are not independent and identically distributed. This situation has consequences for investors, since some returns can be expected, creating opportunities for arbitrage and for abnormal returns, contrary to the assumptions of random walk and information efficiency.
Celem artykułu jest przedstawienie możliwych form rozwiązywania konfliktów na rynku transportu kolejowego w zakresie regulacyjnym. W artykule zdefiniowano pojęcie „konfliktu” oraz zaprezentowano alternatywne formy mediację i arbitraż. Zaprezentowano również zagadnienie bocznic jako potencjalne źródło konfliktów w przyszłości. Rozważania kończą konkluzje zawarte w podsumowaniu o konieczności stosowania alternatywnych form rozwiązywania konfliktów przez nowoczesne zarządzane instytucją publiczną w zakresie zagadnień regulacyjnych dla rynku transportu kolejowego.
EN
The aim of the article is to present possible ways of resolving conflicts in the rail transport market in a regulatory sense. The article defines the notion of conflict and presents alternative forms of conflict resolution - mediation and arbitration. The issue of siding is also presented as a potential source of conflict in the future. Finally, in the summary, the conclusion is presented that there is a need to use alternative conflict resolution methods by modern management of a public institution in the area of regulatory issues for the rail transport market.
On May 21st 2015, the Court of Justice of the European Union in CDC Hydrogen Peroxide decided whether the application of jurisdiction clauses in actions for damages impedes the effective enforcement of EU competition law. The CJ stayed silent, however, on how to treat arbitration clauses, which similarly to jurisdiction clauses, exclude a default court jurisdiction. The question of how to interpret arbitration agreements in the event of an antitrust violation and subsequent actions for damages remains thus unanswered. In light of the foreseen increase in private enforcement of EU competition law, this problem gains significance. This is because arbitration agreements may be frequently used to govern commercial relationships between antitrust infringers and their injured direct contractors. Against this background, the paper aims to analyse the consequences brought about by the existence of arbitration clauses in the event of actions for antitrust damages. It seeks to answer two questions: whether the claims for antitrust damages can be per se arbitrated, and whether the general arbitration clauses used by the parties to regulate their commercial relations cover the actions for antitrust damages. In order to address these problems, the papers draws attention to the CJ’s interpretation of jurisdiction clauses and the Polish experience of interpreting the scope of arbitration agreements in the field of unfair competition law. The paper reaches the conclusion that neither the arbitration nor EU law prevent arbitrating actions for antitrust damages. Whether a specific arbitration agreement covers actions for antitrust damages or not can be analyzed only with reference to the will of the parties interpreted under applicable national law. It is believed, however, that there are many reasons to adopt an arbitration-friendly interpretation of vague arbitration agreements.
Artykuł jest głosem w dyskusji dotyczącej możliwości rozstrzygania sporów z zakresu prawa konkurencji za pomocą arbitrażu. Stanowi polemikę z artykułem autorstwa Piotra Nowaczyka i Szymona Sypa, którzy opowiedzieli się za możliwością rozstrzygania sporów z zakresu prawa konkurencji w drodze arbitrażu. Autor przedstawia argumenty dotyczące publicznoprawnego charakteru regulacji, jaką jest prawo konkurencji i skutków z tego wynikających, w szczególności w zakresie celów realizowanych regulacjami oraz kontroli nad orzecznictwem z tego zakresu, a także trudności z potencjalną egzekucją rozstrzygnięć zapadłych w arbitrażu.
EN
This article is a voice in the discussion whether a competition law dispute may be resolved by way of arbitration. It constitutes a polemic response to an earlier article written by Piotr Nowaczyk and Szymon Syp who argue in favour of such a solution. By contrast, the author of this paper stresses the public-law character of competition law and the resulting repercussions, especially with respect to the goals of competition law and judicial control over its enforcement. The author notes also the potential difficulties with the execution of verdicts reached in arbitration.
JavaScript is turned off in your web browser. Turn it on to take full advantage of this site, then refresh the page.