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Contents:
Arbitration in Common Law Provinces 92 1. Arbitration in Russia and Soviet Union 1. Pre-Soviet Period: Early Days 2. Soviet Period: Arbitrazh Courts v. The Canadian Experiment 1. Modifications and Additions to the ML 2.
Shubra El Kheima is the fourth-largest city in Egypt. It is located in the Qalyubia Governorate along the northern edge of the Cairo Governorate. It forms part of. A. A Cultural Reading of Islamic Domestic Laws 28 Benin, Botswana, Burundi, Cameroon, Comoros, Egypt, Eritrea, Ethiopia, Gambia,. Ghana in Fear, in 1 ISLAM AND HOMOSEXUALITY, supra, at 23; Sexual Orientation and Gender. Identity Ajman, Umm al-Quwain, Ras al-Khaimah, and Fujairah.
The Basic Principles of the ML 3. The Basic Principles 3. Arbitration Courts in Moscow and St. Petersburg D. Introduction B. In the Beginning.!.!! Conclusion C. Conclusion D. New Law v. Conclusion E. To begin with, I am greatly indebted to the Soros Foundation for the opportunity to pursue graduate studies outside my home country and Professor Tibor Varady of the Central European University for teaching me the basics of international commercial arbitration.
I am extremely grateful to my supervisor Professor Robert K. Paterson for his excellent supervision, encouragement and patience to corriment'on numerous drafts and papers. My thanks must also go to my second and third supervisors, Professor Pitman B. Potter and Mr. Henri C. Alvarez, who devoted much of their expertise and time to this thesis. In addition, I am grateful for guidance and comments of Professor Claire Cutler, Univeristy of Victoria, who was my fourth supervisor. Above all, I thank my mother, father and sister in Belgrade, an my husband Goran and son Philip for believing in me.
This thesis is dedicated to them. It is a "creation" of the parties to a dispute.
The growth of international trade, the increasing complexity of international transactions and the disappointment with the regulation of international trade by these various national laws fostered a climate conducive to unification and harmonization of these laws under the auspices of various international organisations, including the United Nations. Its approach to harmonization has been to rely on model laws rather than on 1 T. Varady, ed. Model laws may be initiated by national bodies, by international intergovernmental or non-governmental organisations or by specialist agencies.
Unlike international conventions, internationally drafted model laws do not have the force of international law. There is no need for a formal diplomatic conference to adopt model laws or to amend them.
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There is no obligation for states to ratify and enforce such drafts in their territories. More importantly, model laws may be adopted in their entirety, or in part, or they may simply be taken as general ideas from which to create national laws. In other words, only when they are adopted at a national level or by departmental governments in a federal state do model laws acquire the force of law. For example, in Red Cross International Committee drafted a model law for the protection of the Red Cross emblem and title.
Yet, it is important to notice that previously drafted model laws were legislative directions for developing countries.
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In the United International Bureaux for the Protection of Intellectual Property drafted a model law for developing countries on inventions. The same agency proposed in a model law for developing countries on marks, trade names and acts of unfair competitions. The World Intellectual Property Organisation drafted two model laws for developing countries.
In it prepared a model law on industrial design and in on appellations of origin and indications of source.
The policy objectives of the M L are as follows: "[a] the liberalisation of international commercial arbitration by limiting the role of national courts, and by giving effect to the doctrine of the 'autonomy of the wi l l ' , allowing the parties freedom to choose how their disputes should be determined; [b] the establishment of a certain defined core of mandatory provisions to ensure fairness and due process; [c] the provision of a framework for the conduct of international commercial arbitration, so that in the event of the parties being unable to agree on procedural matters, the arbitration 'would nevertheless be capable of being completed; and [d] the establishment of other provisions to aid the enforceability of awards and to clarify certain controversial practical issues.
See P. This thesis proposes one of the possible methods for such an evaluation— investigation of the reception of the M L in Canada, Hong fCong and Russia9 and the impact which the M L made on the local legal cultures in these three countries.
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This thesis focuses, on one hand, on the nature ,of changes that have occurred in national laws after the adoption of the M L and, on the other hand, on those changes made to the M L itself upon its adoption by the various countries. The thesis takes the view that the most important issue concerning the M L is the relationship between national courts and Sanders, "Unity and Diversity in the Adoption of the Model Law" 11 Arb.
Int'l 1 at 3. See J. Accordingly, this thesis investigates several aspects of court intervention in arbitral proceedings under the parameters of the M L in Canada, Hong Kong and Russia; enforcement of the agreement to arbitrate by stay of proceedings, the ordering of interim measures, judicial review of awards and, finally, recognition and enforcement of foreign arbitral awards. This thesis arrives at two conclusions. First, it finds that the M L , by fostering gradual harmonization of the law on international arbitration, is a flexible model for stabilization.
Then, it concludes that the M L , despite its inevitable standardization, actually accommodates the particular needs of the legal cultures and traditions of adopting countries. This dissertation is based on the premise that research into the M L on International Commercial Arbitration is important for several reasons related both to the nature of the M L and to its reception. The first reason for looking into the M L is because arbitration in general has been an efficient alternative to litigation for international business.
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This issue is particularly important in the ; Rossiiskaia Gazeta of August For this reason, the origins of the M L need to be explored and its basic principles analysed. Also, the way the M L has been received in a particular country, including any changes to local legal systems caused by its reception, should be identified.
The third reason for this research is that interest in the M L has grown remarkably over the past decade. Many, countries which needed to up-date or establish dispute resolution mechanisms looked into it as a suitable standard. Although the extent to which mere adoption of the M L can transform any country or city into an important international venue is debatable, arbitration centres established or reorganised in adopting countries at least gained the advantage of having a transparent, user-friendly law written in the official languages of the United Nations, and approved by leading world experts.
Several countries, which did not adopt the M L changed their laws to meet the M L standards or even went beyond the M L. On the other hand Belgian Judicial Code Code judiciaire of 21 March , Sixth Part: Arbitration, went beyond the M L providing that there would be no right to appeal for setting aside award made in Belgium if both parties are foreigners.
Ironically, this unprecedented solution did improve the popularity of Belgium as a arbitration venue. Finally, the M L is significant because, by limiting the courts' involvement in arbitral proceedings, it places limits on a state's sovereignty. Accordingly, it is important to investigate how M L adopting countries, such as Canada, Hong Kong and Russia, balanced the need to protect state sovereignty against the private interests of the parties involved in arbitration. Scholarly Context Many scholars have addressed some of the questions raised by this study, but not in the same context.
As a general matter, arbitration has been studied by anthropologists, sociologists, lawyers and political scientists. Even though anthropologists and sociologists do not address the M L itself, their impressive studies of dispute resolution mechanisms in different societies offer a meaningful historical background to research on arbitration. Richard Abel and Laura Nader, for example, deal with comparative research into dispute resolution methods in different societies.
Indeed, the field work of sociologists and anthropologists reveals that in Western legal culture litigation is the method of dispute resolution most frequently employed, while traditional 1 4 See, for example, R. Todd, eds. The last mentioned is a type of arbitration in which the parties voluntarily agree to submit their dispute to the family head or elders in the community and agree in advance to be bound by the resulting decision. See also J. But see R. Nelken, ed. Roger Cotterrell criticises Friedman's concept of legal culture for lacking clarity and for being theoretically incoherent.
From Friedman's work and various definitions of legal culture it is impossible to determine the scope of the concept, says Cotterrell. See ibid, at Friedman, "On Legal Development"; supra note 16 at In other words, they talk about voluntary and involuntary reception. These are: official laws sanctioned by the legitimate authority, unofficial laws sanctioned in practice by the general consensus of the population, and-a legal postulate as a value principle or system connected with a particular official or unofficial law.
Reception of law starts at the first level but impacts the second and third levels. Watson examines the phenomenon of transplantation by considering, for example, the reception of Roman Law in medieval Europe, the spread of English law through the countries of the Commonwealth, and the influence of the French Code civil on the codification of civil laws on the European continent. Cappelletti, ed.
Harrel-Bond, eds. Authors of this project examine the reception of Western laws in Hindu, Buddhist, Sunni-Islamic, Islamic, Shinto and multi-religious societies. They argue that CEE countries adopted or borrowed or imported or transplanted Western laws to make the short-cut to market economy status.
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Wolfgang Wiegand explores the reception of American Law in Western Europe, comparing its reception with that of the Roman law in medieval Europe. Many legal scholars from developing countries, such as Professor M. Amazu Asouzu and Samson Sempasa have debated that the reception of the M L imposes a standard-setting foreign to the tradition of the borrower.
Int'l Arb. Mbaye J. Int'l L. Asouzu, supra note 11, S. This leads to better protection of foreign Western investors. Samson Sempasa emphasises that the European laws have always dictated trends in international business law.
Politicians and the media then feed this optimism with rosy narratives that the general public is in no position to sort through or confirm. Their budgets usually have no room to accommodate extra expenditures. However, the eight-year stint in opposition that followed did Fidesz the Remember too that there is freedom of movement of goods within the EU but whereas the Germans and French tend to be more nationalistic consumers, people in the UK are not concerned about the source of their purchases - which partially explains the GDP gap. Kerr, supra note , M.
On the other hand, African countries followed these trends first directly applying European laws imposed in former colonial days and then modelling their new laws upon the European patterns. A number of sociologists and political scientists have demonstrated that the harmonization of rules on international commercial arbitration can also be discussed within the broader context of globalisation. Sempasa, supra note 26 at and Sempasa, supra note 26 at and M. See, for example, A. Asouzu, supra note 11 at To reiterate, the M L is not an international convention which must be ratified by member-states within certain period of time and without any changes expect where provided for by the convention itself.
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It is not enforceable as international law. The M L attempts to standardize a great number of rules and principles on international commercial arbitration, but it also fails to define many important terms and institutions of arbitration. Legal scholars are usually more focused on the ways in which arbitration operates within the legal system and with the basic principles of arbitral proceedings rather than on the social context of law. It is difficult to find any book on commercial arbitration written Bus. World Tr. Global Legal Stud. Global Legal. Mittelman, "The Dynamics of Globalisation" in J.
Mittelman, ed. Int'l There are several aspects of arbitration.
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The parties to international commercial arbitrations are often of different nationalities. They usually speak different languages. They are represented by lawyers from different countries and with different approaches to arbitration.