Search results

Abstract
Given the breadth of topics in the Articles on State Responsibility, the guidance on interest contained in Article 38 could be easily overlooked. Yet discussions on this subject featured prominently in the work of the International Law Commission (ILC) spanning nearly four decades. Article 38 is also intrinsically relevant to international investment arbitration where the coveted remedy is monetary damages. Despite this, investment arbitration practitioners only make passing reference to Article 38 without fully appreciating the history of the ILCs discussions that inform the application of this provision. Facially, Article 38 seems to provide little direction and broadly defers to the discretion of arbitral tribunals on critical issues. On closer examination, however, the final text of Article 38 itself and its Commentary as well as the ILCs preparatory works provide rich insights for those engaged in interest determinations in investment arbitration. This essay analyzes the treatment of Article 38 by investment arbitration tribunals in conjunction with the ILCs discussions on this article and documents a number of areas where divergences between arbitral awards and the ILC Articles and Commentaries have emerged over time.

The history of international adjudication is all too often presented as a triumphalist narrative of normative and institutional progress that casts aside its uncomfortable memories, its darker legacies and its historical failures. In this narrative, the bulk of 'trials' and 'errors' is left in the dark, confined to oblivion or left for erudition to recall as a curiosity. Written by an interdisciplinary group of lawyers, historians and social scientists, this volume relies on the rich and largely unexplored archive of institutional and legal experimentation since the late nineteenth century to shed new light on the history of international adjudication. It combines contextual accounts of failed, or aborted, as well as of 'successful' experiments to clarify our understanding of the past and present of international adjudication.

"International commercial arbitration and litigation are often seen as competing fora, fields of law, or markets. This intersection is at its highest at the forefront of any proceedings, at the jurisdictional stage. The analysis of jurisdictional issues at the forefront of an arbitration has been confined in a descriptive analysis of the law and jurisprudence, dealing with jurisdictional intersections almost in a mechanistic manner. These are not, however, issues which can be treated as mere mechanical rules. They are issues pertaining to core notions of authority, sovereignty, their origins and their allocation. At the same time, the pragmatic and practical domination of party autonomy is a fact which cannot be disregarded when one considers the normative and theoretical foundations of any model of dealing with these issues. This book moves beyond an analysis of arbitration and jurisdiction clauses to reconcile theory and practice, and provides an underlying theoretical model to explain and regulate jurisdictional intersections at the early stages of an arbitration from a private international law perspective. It combines both an in-depth engagement with the theoretical literature as well as a close examination and analysis of its practical consequences in the form of a restatement of the law of England and Wales. From a methodological perspective, it utilises contemporary theories in private international law to propose a coherent model of regulating arbitral jurisdictions which promotes autonomy and freedom of the parties at this stage. Demonstrating how the theoretical model can be applied in practice and second to provide a basis for a potential future top-down or bottom-up approach of adopting the proposed model, it includes a succinct and practical codification of the current state of affairs in relation to the whole spectrum of jurisdictional issues in England and Wales to serve as a useful tool for practitioners considering jurisdictional issues both from the perspective of State courts and from the perspective of arbitral tribunals, as well as academics researching in these areas"--

Subject matter of private international law / Xiaohong Liu, Xin Cai -- Sources of law / Xin Cai -- History of private international law / Xin Cai -- Classification / Xin Cai -- Preliminary question / Xin Cai -- Dépeçage / Xin Cai -- Renvoi / Xin Cai -- Point of contact / Xin Cai -- Ascertainment of foreign law / Xin Cai -- Public order, mandatory rules and evasion of law / Xin Cai -- Jurisdiction in personam / Jianping Shi and Zijun Zhai -- Jurisdiction in shipping claims / Jianping Shi and Zijun Zhai -- Immunities from jurisdiction / Jianping Shi and Zijun Zhai -- Law of obligations / Qingkun Xu -- Law of property / Lin Jia, Qingxuan Wu, Zhengyi Zhang -- Jurisdiction and applicable law in matters of intellectual property in China / Yang Cao -- Family law / Zhengyi Zhang, Jingning Zhang -- Law of corporations and insolvency / Xiaolin Li -- Competition law / Maozhong Ding, Dan Wang -- Recognition / Zhengyi Zhang, Zhen Zhang -- Enforcement of judgments / Zhengyi Zhang -- Interregional judicial assistance / Jun Chen -- International commercial arbitration / Shuo Feng -- Investment treaty arbitration / Junrong Song, Min Han -- China's role in the work of international organisations / Zhengyi Zhang, Yannan Liu -- The belt and road initiative and Chinese private international law / Zhengyi Zhang -- The future of private international law / Guojian XU, Zhengyi Zhang.