The out-of-court dispute resolution is an area of law that is coming into focus from EU law, through international treaties to national laws. In recent decades, this dynamic field of law has begun to ...establish itself as an important alternative to judicial dispute resolution. This is reflected in the adoption of various legal norms, with the Singapore Convention being one of the most recent significant additions to the sources of law. Out-of-court dispute resolution encompasses a wide variety of dispute resolution methods, with arbitration and mediation being the most important, as these are the only two methods of out-of-court dispute resolution that are regulated by a number of generally binding legal regulations (as well as many others). The multitude and diversity of legal regulation of arbitration and mediation, their interrelationships and mutual influence are the subject of this article..
Investor-treaty dispute settlement is used by States and investors to resolve disagreements that investors may have with regard to their investment in the host state. Disputes are usually resolved ...through arbitration, and the process has all the trappings of general commercial arbitration. However, there have been calls for the system to be replaced by a permanent court structure. If a permanent court is the next step, this must mean that the current system has legitimacy issues which may be resolved by a permanent structure.This article explores three problems with the current system: inconsistent decisions, lack of appeals, and lack of transparency. These are serious issues which affect the legitimacy of the current system. The discussion focuses primarily on the International Centre for Settlement of Investment Disputes (ICSID) system as this is the most common choice, and some mention is made of the United Nations Commission on International Trade Law (UNCITRAL) system. Throughout the article, I analyse the problems associated with these and how a permanent court may address these legitimacy issues. My argument is that a permanent court can weed out inconsistent decisions, have a fair and real appeals structure, and be sufficiently transparent as to as to allow or facilitate interested groups to act as amicus curiae. The discussion makes reference to the draft Transatlantic Trade and Investment Partnership (TTIP) because, through this, the European Union (EU) has proposed a potential permanent court structure.
Jordan is currently going through difficult economic conditions whose features have begun to crystallize clearly since the outbreak of crises and wars in Syria and Iraq. In addition to that, the year ...2020 brought with it the unknown to further complicate the Jordanian economic situation. In order to find a comprehensive solution, the Jordanian legislator used some international references, such as the principles of effective systems of creditors’ rights and insolvency issued by the World Bank and the Legislative Guide to the Insolvency Law issued by the United Nations Commission on International Trade Law (UNCITRAL) to rescue faltering economic projects or those that are about to stumble. The study resulted in the issuance of the Jordanian Insolvency Law No. 21 of 2018. This paper aims to identify the insolvency standard of the Jordanian courts and its impact on Jordan's economy. By applying a qualitative legal approach, this paper analyses the mock application of the Insolvency Law by the Jordanian courts. It also examines the insolvency standard followed by the Jordanian courts via juridical-normative with descriptive analysis. The finding shows that applying the insolvency law in Jordan is still a theory. Jordanian courts should cautiously extend the scope of insolvency theory for the law to achieve the purpose for which it was issued. Comparing the practice in Indonesia, which has switched from the insolvency test concept to the presumption of bankruptcy, this is a lesson because, in the conditions of the COVID-19 pandemic, companies will find it challenging to request reports due to uncertain situations. According to the financial aspect, large companies are still good, but companies are reluctant to pay debts. This condition means that if the system used is a bankruptcy test, this case cannot be brought to the Commercial Court, so the court cannot force debtors who are reluctant to pay their debt obligations.
The article reveals the formal-legal basis for the institutionalisation of international commercial arbitration. It is found that states are still far from a unified understanding of the basic scope ...of human rights, but they have a clear common vision of the mechanism for protecting the interests of international commerce. Against the background of the economic and innovative successes of the EU and other countries in the world that have made human rights a priority, it would appear that the source of modern transnational trade problems lies precisely in another group of states in which commercial interests dominate human rights. This second type of state nourishes its development at the expense of the innovations of the first type of state, its constructive and passionate representatives. Innovative solutions are formulated by the freest people, whose freedom is legally and organisationally guaranteed, which becomes a source of release for their creative, productive existential energy. Therefore, the contradictions between these two types of entrepreneurs of nations give rise to commercial disputes regarding the path of development, as well as legal conflicts within each of these types of nations regarding the vector of development or decline. Strategically, it is an ontology of modern problems of international commercial disputes. It is emphasised that the institutionalisation of international commercial arbitration is conceived as the creation of legal models for interpretation, determination of cause-effect relations, assessment of all essential circumstances of commercial relations, about which the parties of this type of social interaction have not reached an agreement and are forced to turn to mediators, to whom they entrust jurisdiction over the dispute between them. It was noted that the legal reality of the institutionalisation of international commercial arbitration reflects the path of human development, which at the present stage is marked by crisis. Logical, rational, clear law is in a permanent process of critical evaluation of the synergy of creative, risky, adventurous, pragmatic entrepreneurship. Ideal legal models absorb the constructive activity of entrepreneurship, foreseeing its long-term prospects as positive. At the same time, it is the task of lawyers to reject those types of economic relationships that threaten common humanity. In conclusion, the UN Commission on International Trade Law is the only global body designed to ensure the optimal course of correlation processes between private international law and transnational commercial activity. At the same time, however, this Commission suffers from all the consequences of the UN's dysfunction. This is particularly evident in the UN's inability to prevent wars, famines, environmental disasters, military crimes and other global crises. It is advisable for the states to create a separate organisation in which they can coordinate their legal standards of joint entrepreneurship in the extractive industries, production, trade, finance, as well as the global environmental, national economic and other consequences of commercial projects. This organisation would become a convenient platform for honest parity in the unification of the legal practice of transnational entrepreneurship and the settlement of its disputes, based on the legal customs and traditions of different nations. This would provide a significant impetus for the healthy creation and application of international private law, capable of determining the vector both of global progress and of appropriate transformations in domestic national economic policies.
Following modern worldwide trend of transparency, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Rules on Transparency in Treaty-based Investor-State ...Arbitration, which were incorporated in UNCITRAL Arbitration Rules. The Convention on Transparency (the Mauritius Convention) adopted later was an attempt to resolve the situation with treaties, which were concluded prior to April 1, 2014. As soon as few previous studies covered this issue, the research is aimed to assess the extent to which the Rules on Transparency are applicable and inevitable. By way of qualitative analysis of documents covering the transparency issue in investor-state treaties and arbitration was revealed that like the treaties concluded after April 1, 2014, which were automatically covered by the scope of application, the treaties made prior to that date were dropped out of the Rules on Transparency and the parties thereto have to express an explicit will to apply the Rules on Transparency. The Mauritius Convention designated to resolve this problem still requires a member state to join the Convention to make the Rules applicable to all treaties with such member state. On the other hand, both discussed documents provide the parties with options to avoid transparency in arbitration. Thus, despite increasing mandatory transparency in national legislations, the transparency of investor-state arbitration proceedings remains the matter of a good will of the parties. This study provides the foundation for stakeholders to conduct investor-state agreements as well as arbitration processes in line with transparency. The issue of transparency in investor-state agreements and arbitration processes in different countries can be illustrated in the following studies based on this study.
In recent times, the importance of foreign investments becomes vital in the world’s economy. The mutual cooperation between developed and developing countries by signing the bilateral and ...multilateral treaties with its own dispute settlement mechanisms is growing significantly. Due to the fact mentioned above, the frame- work gives the possibilities for both - investors and host states to protect their rights in the international forum. The present research is related to the importance of the notion of “Investment” in International Investment Arbitration, its implications, and the current trends on the definition itself. This issue is very important, as it is a threshold jurisdictional question for the International Investment Tribunal’s jurisdiction. The paper discusses the Bilateral Investment Treaties, their legal nature, and the expediency of their conclusion. The issue of Notion of direct investment in bilateral investment treaties will also be detailed in the paper, moreover, there will be an overview of different types of BIT definitions on the example of different countries’ BIT practice. A very comprehensive discussion will be followed on the best practices established by the International Investment Tribunals regarding the definition of “investment”. In the end, the author will analyze whether or not there is a common/universal notion of investment in Investor-State disputes.
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