Suchergebnisse

Introduction -- Globalisation and commercial disputes -- Cross-border jurisdiction in commercial disputes -- Party autonomy in private international law and arbitration -- Existing approaches for regulating arbitral jurisdiction -- A global law model for arbitral jurisdiction -- Arbitral jurisdiction from a state court's perspective -- Arbitral jurisdiction : issues before arbitral tribunals -- Conclusions : arbitral jurisdiction architecture.

Cover -- Half Title -- Series -- Title -- Copyright -- Dedication -- Contents -- Foreword -- Preface -- List of Abbreviations -- Table of Cases -- 1 Introduction -- 1.1 Arbitral Jurisdiction in Private International Law and Arbitration -- 1.1.1 Jurisdiction as Adjudicatory Competence in Cross-Border Disputes -- 1.1.2 Jurisdiction, Arbitration, and Party Autonomy -- 1.2 Recurring Themes -- 1.2.1 Arbitral Jurisdiction and Parallel Proceedings in International Commercial Disputes -- 1.2.2 Private International Law Analysis of Arbitral Jurisdiction: Comparison, Parallels, and Transposition -- 1.2.3 Economic Globalisation, Global Law, and Arbitral Jurisdiction -- 1.2.4 Jurisdictional Focus: Arbitral Jurisdiction in England and Wales -- 1.3 The Enquiry -- 1.3.1 Research Question -- 1.3.2 Contribution to Knowledge -- 1.3.3 Scope -- 1.3.4 Structure -- 2 Globalisation and Commercial Disputes -- 2.1 Globalisation and the Rise of Private Actors in International Commerce -- 2.2 State Interests in Private Commercial Disputes -- 2.3 Private Interests and Risks in International Commercial Transactions and Disputes -- 2.4 Arbitration, Merchants, and International Commercial Disputes -- 2.4.1 Arbitration as a Dispute Resolution Method for Merchants -- 2.4.2 Arbitral Jurisdiction in the Context of International Commercial Disputes -- 3 Cross-Border Jurisdiction in Commercial Disputes -- 3.1 Jurisdictional Issues in International Commercial Disputes -- 3.1.1 Jurisdictional Disputes and Private International Law -- 3.1.2 Tactical Nature of Jurisdictional Disputes -- 3.1.3 Party Autonomy and Jurisdiction -- 3.2 Jurisdictional Issues in International Arbitration -- 3.2.1 Traditional Doctrinal Approach to Arbitral Jurisdiction -- 3.2.2 Jurisdictional Intersections -- 4 Party Autonomy in Private International Law and Arbitration.

"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"--

As the social impact and role of international arbitration receives increasing attention, one central theme in this conundrum gains prominence: how do arbitrators decide cases? What influences arbitral decision-making? With the progressive opening of scholarship in the field to interdisciplinary approaches and studies going beyond doctrinal work, the question often takes the following form: do arbitrators apply the law, or do they make decisions based on something else – personal preferences, political biases, etc? When empirical studies fail to find significant statistical evidence of the role of extra-legal factors in their decision-making, the conclusion is drawn that arbitrators do indeed nothing else than apply the law. This article argues that the question so posed is an argumentative fallacy. Using the epistemology of legal realism and a simple methodology of law & economics, this article maintains that arbitrators, like every dispute resolver, are likely to always rely on both legal and extra-legal factors. It focuses on identifying, in the abstract, possible extra-legal factors which may amount to incentives and constraints placed by the current ecosystem of arbitration on arbitral decision-making.