Introduction. The article is devoted to the study of the functioning and peculiarities of proceedings in international commercial arbitration, specializing in trade in grain and oil crops. The ...article examines the features of arbitration proceedings that are characteristic of GAFTA arbitration.
Summary of the main research results. The article is devoted to the study of the functioning and peculiarities of proceedings in international commercial arbitration, specializing in trade in grain and oil crops. The article examines the features of arbitration proceedings that are characteristic of GAFTA arbitration. The key differences of grain arbitration are established, namely: the specific qualification of GAFTA arbitrators in the field of trade in grain and oil crops, which distinguishes this arbitration institution from other permanent arbitration institutions; unique for arbitration proceedings is the presence of an appeal proceeding, which is also organized by the arbitration institution and gives the parties the opportunity to appeal the arbitration decision of the first instance; arbitrators reviewing first-instance decisions are not bound by the decision of the first-instance tribunal and have the opportunity to review the case with the addition of a new evidence base; availability of standard and simplified arbitration procedures, which effectively affects the time and financial resources of the parties to arbitration proceedings; the presence of a simplified procedure, which makes it impossible to appeal the arbitration decision, leaves only one arbitrator and significantly speeds up the arbitration of the case, standard for arbitration procedures, a high level of confidentiality of the proceedings, which can be especially important, taking into account the specifics of the grain trade market; features related to payment of arbitrators' work and payment of arbitration fees, depending on the parties' membership in GAFTA; the use of English law in arbitration, which in most cases is more applicable precisely for similar commercial disputes; arbitration proceedings in GAFTA in most cases take place without an oral hearing, only on the basis of written documents, which significantly speeds up the proceedings; parties can significantly reduce arbitration costs in GAFTA arbitration if they are members of the association, as in this case mandatory payments are significantly reduced; GAFTA arbitration effectively changed its working format during the coronavirus pandemic and moved to electronic document flow and electronic awards using electronic digital signatures and seals.
Conclusions. The article establishes that specialized international commercial arbitrations on grain trade are an effective way of resolving commercial disputes complicated by a foreign element, taking into account the qualifications of arbitrators and the special arbitration procedure.
Introduction: criminal courts, lawyers and the public sphere / David Lemmings -- Trials in print. narratives of rape trials in the proceedings of the old Bailey / Esther Snell'Useful and entertaining ...to the generality of readers'. selecting the select trials, 1718-1764 / Andrea McKenzie -- Representing the adversary criminal trial. lawyers in the old Bailey proceedings, 1770-1800 / Robert Shoemaker -- Arts of public performance. barristers and actors in Georgian England / Simon Devereaux -- Negotiating justice in the new public sphere. crime, the courts, and the press in early eighteenth-century Britain / David Lemmings -- Contemplating the evil within. examining attitudes to criminality in Scotland, 1700-1840 / Anne-Marie Kilday -- Fiction or 'faction'? Literary representations of the early nineteenth-century criminal courtroom / Allyson N. May -- Publishing courtroom drama for the masses, 1820-1855 / Rosalind Crone.
INTRODUCTION. This article discusses the approaches developed by the courts of the Asia-Pacific region (on the example of Singapore, Hong Kong and Malaysia) on the relationship between the ...arbitrators’ discretion when considering disputes and the observance of the principle of natural justice. The purpose of the article was to analyze the approaches of national courts to the interpretation of the principle of natural justice in the context of the implementation by arbitration of its discretionary powers in resolving disputes submitted to them. The risk that the arbitrators fail to find a balance between discretionary powers and natural justice is that the award may be set aside. MATERIALS AND METHODS. The study was based on the analysis of national legislation of the countries of the Asia-Pacific region, the practice of arbitration centers and judicial bodies, as well as the existing positions of researchers specialized in the natural justice issues and practitioners in the field of international commercial arbitration. The methodological basis of the research includes general scientific (analysis) and special legal (comparative legal) methods. RESEARCH RESULTS. International commercial arbitration is widely regarded as an alternative dispute resolution mechanism to litigation in national courts. However, national courts are often involved in reviewing arbitral awards in the context of their setting aside in order to ensure that the arbitral procedure complies with the fundamental principles of natural justice. The understanding of the principle of natural justice is not the same in all jurisdictions and depends on the venue of the arbitration, as well as on what rules the parties have agreed to govern the proceedings. Arbitral discretion is important in filling the gaps left by the rules and guidelines formulated by various arbitral institutions and practices. DISCUSSION AND CONCLUSIONS. The author considers the approaches of the courts of Singapore, Hong Kong and Malaysia ensuring a balance between arbitrators ‘discretion and compliance with the principle of natural justice, and also, based on the analyzed practice, suggests ways to minimize the risk of annulment of an arbitral award due to a violation of natural justice, namely the need for an established procedural protocol, which would provide certainty and eliminate problems arising in connection with the application of discretion by arbitration.
Plures leges faciunt arbitrum Ferrari, Franco
Arbitration international,
09/2021, Volume:
37, Issue:
3
Journal Article
Peer reviewed
The article analyses the continuing importance of the law of the seat, while at the same time showing that the law of the seat cannot be the only one to impose itself on any given arbitration.
Abstract
Delays are becoming a common phenomenon in international investment arbitration and challenging the conventional belief that it is a time-effective mode of dispute resolution. These delays, ...majorly stemming from interim procedural applications, are known to arise due to the different interests and types of stakeholders involved in the process. This article provides an empirical analysis of such arbitration proceedings to cull out the types, nature, and effects of delay tactics in such proceedings. This article identifies three types of applications that play an increasing role in investment arbitration, namely, applications for ‘security for costs’, applications for disclosure of third-party funding, and the objections of manifest lack of legal merit of claims. Such delays can particularly become a cause of concern for investment arbitration as they have impacts beyond those which are on the parties involved.
The literature is yet to consider the contribution of Nightingale Courts to access to justice in England and Wales during the COVID-19 pandemic. Nightingale Courts are courts that have been set up in ...repurposed buildings, such as town halls, hotels, and theatres, to facilitate socially distanced trials and hearings. I fill this gap by asking: to what extent have Nightingale Courts addressed access to justice concerns during the pandemic, and what lessons do Nightingale Courts hold for access to justice across jurisdictions and in the future? I argue that though costly and complex, Nightingale Courts have helped to prevent a further worsening of delay during the pandemic. Then, I explore the lessons of the Nightingale Court experiment for access to justice across jurisdictions and in a post-pandemic world. I consider Nightingale Courts as an experiment for legal architecture, informal justice, and adaptation and resilience. I conclude that Nightingale Courts have maintained and preserved access to the legal system during a time of crisis and thereby contributed to the resilience of the system.
Detention by any other name Mayson, Sandra G
Duke law journal,
04/2020, Volume:
69, Issue:
7
Journal Article
Peer reviewed
An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an ...unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice.
This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and normative ambiguity in the concept of "unaffordable" bail. It explains in practical terms what it would entail for a court system to treat unaffordable bail as a detention order. One hurdle is that both legal and policy standards for pretrial detention are currently in flux. Recognizing unaffordable bail as a detention order foregrounds the question of when pretrial detention is justified. This is the key question the bail reform movement must now confront.
Full text
Available for:
IZUM, KILJ, NUK, PILJ, PNG, PRFLJ, SAZU, UL, UM, UPUK
INTRODUCTION.
The principle of jura novit arbiter or jura novit tribunus is an analogue of the doctrine of jura novit curia in international arbitration proceedings which is free from the ...peculiarities of national laws. The significance of its application in international arbitration lies in the powers of an arbitral tribunal to participate in ascertaining the content of the applicable law. Given the features of international arbitration, material limitations are put on the jura novit arbiter principle in order to protect the rights and interests of disputing parties. However, limitations have both positive and negative legal effects.
MATERIALS AND METHODS
. The authors researched the provisions of international treaties, case law of tribunals and state courts demonstrating the scope of the arbitrator’s discretionary powers and the effects of its limitation, as well as the works of Russian and foreign scholars. The methodological basis of the research includes general scientific and special methods.
RESEARCH RESULTS
. The analyses of international treaties and case law led to the elaboration of the list of the main limits of the jura novit arbiter application. The study examined the issues in the relationship between jura novit arbiter and other principles aimed at narrowing the scope of its functioning.
DISCUSSION AND CONCLUSIONS.
The results of the analysis allow to draw the following conclusions. First, there are three major constraints put on the arbitrators' discretion: 1) ne ultra petita (not beyond the request), 2) due process in terms of a right to be heard and the foreseeability test, 3) expediency and efficiency of arbitral proceedings. Secondly, the limitation of the principle is a double-edged sword: on the one hand, it ensures legal certainty and predictability of an arbitral proceeding and its outcome, secures the rights and interests of the parties. On the other hand, the aforementioned limitations reveal also some downsides: there is no clear guidance on identifying conditions under which the ne ultra petita principle does not serve as a boundary of the jura novit arbiter principle; the "foreseeability" is an evaluative concept; and the imbalance between expediency and efficiency principles and jura novit arbiter may give rise to concerns about the established content of the applicable law.
The Author carries out an up-to-date study reflecting the possibility of providing other means of proof to an arbitration court, namely, information that can be obtained using free services “Google ...Maps” and “Yandex.Maps”. The judicial practice has been investigated, in which such means of proof meet all the evaluation criteria, and sometimes the photographs presented in the case materials are the only evidence that confirm certain circumstances of the case. An analysis of judicial practice in the arbitration process shows that photographs from Yandex.Maps and Google Maps are more often than others attached to the case materials when it is necessary to establish the presence of an object in a specific territory, including the periods of its presence. In relation to modern means of proof, the Author uses the term “unnamed evidence” to emphasize that the procedure for research and assessment of such evidence is not fully clear to the law enforcement officer and is not enshrined by the legislator. Since the current arbitration procedural legislation establishes an open list of means of evidence, and the law does not contain special instructions on the procedure for evaluating and examining such evidence (Part 2 of Article 64 of the Arbitration Procedure Code of the Russian Federation), the term used may well be applicable to information received using the Google Maps and Yandex.Maps services. The latter, in turn, under certain conditions (after going through the process of proof) can be evidence in the case, confirming certain facts. The article concludes that there is a need to legally secure the order of research and assessment of “unnamed evidence”, which is also confirmed by judicial practice. The work also mentions the proposal of Rosreestr to create a unified database service for real estate objects. With a certain degree of objectivity and reliability, it seems that this proposal should be supported at the legislative level and implemented in the foreseeable future.
Unlike rulemaking and judicial review, administrative adjudication is governed by a norm of exceptionalism. Agencies rarely adjudicate according to the Administrative Procedure Act's formal ...adjudication provisions, and the statute has little role in defining informal adjudication or specifying its minimum procedural requirements. Due process has almost nothing to say about the matter. The result is that there are few uniform, cross-cutting procedural requirements in adjudication, and most hearings are conducted using procedures tailored for individual agencies or programs. This Article explores the benefits and costs of adjudication's exceptionalism norm, an analysis that implicates the familiar tension between uniformity and specialization in the law. It argues that the exceptionalism norm overemphasizes specialization, at great cost. This Article urges a new regime designed to more properly balance the values of specialization and uniformity. The proposal contemplates that as in rulemaking, the project would entail an interbranch effort to protect fundamental rights and promote institutional integrity while preserving space for needed agency discretion.
Full text
Available for:
IZUM, KILJ, NUK, PILJ, PNG, PRFLJ, SAZU, UL, UM, UPUK
PDF