Volume 9, Issue 1 (July, 2020)
Table of Contents
This Editorial seeks to describe how international arbitral practice, and its various claims to autonomy, have been shaped by competing visions, whose influence varies depending on changing environments, in ways that ultimately determine the field’s development and driving preoccupations. The concept of autonomy is omnipresent in arbitration scholarship and touted as central to the field’s existence. Common accounts tend however to only emphasise the degree to which international arbitration evolves freely from State control. In so doing, they pass over the specific and evolving visions that support claims to autonomy from national legal systems, as well as how such claims serve to re-embed arbitral practice in alternative non-State normativities. Two such competing visions will be identified: the first, more prevalent in an earlier period, presented autonomy as the reflection of a distinct sociological reality (that specific to commercial actors engaged in cross-border trade); the second, more popular today, largely understands autonomy as a function of self-sustaining legal principles that are not specific to international arbitration, but the expression of globally extensive and universally valid ideas of justice.
Balancing Justice And Efficiency: Analysing The Waiver Of Nullity Remedy In The Post-Award Stage And Its Compatibility With Due Process
Bruno Balbiani & Federico Fernández de León
There are a considerable number of legislations that expressly admit the possibility for parties to exclude, by mutual agreement, the right to submit an application for setting aside a future award. Instead, other jurisdictions have chosen to expressly deny this possibility. However, the reality indicates that most legal systems in comparative law, including the United Nations Commission on International Trade Law Model Law [“Model Law”], still do not contain an explicit normative solution regarding the validity of these agreements. Therefore, in cases where we do not find an express solution to this matter, should we admit the validity of these agreements? The question of the validity of agreements waiving the right to challenge arbitral awards is a complex issue that touches upon fundamental principles of party autonomy, public policy, and international human rights. Through a careful analysis of jurisprudential and doctrinal arguments, both for and against such agreements, this note seeks to shed light on the delicate balance between justice and efficiency in international arbitration.
Over the past decade, there has been a significant rise in what is commonly referred to as the ‘gig economy.’ This term describes a growing sector of the workforce made up of individuals who work on a temporary or freelance basis, often through online platforms that connect them with clients or customers. The gig economy has also raised concerns about worker rights and protections. Many gig workers are classified as independent contractors rather than employees, which means that they are not entitled to benefits such as health insurance, paid time off, or minimum wage protections. Moreover, the contractual relationship between gig workers and the platforms they work for can be opaque and difficult to navigate, raising questions about the fairness of these arrangements. This paper primarily analyses the arbitration agreement between gig workers and Ola with a focus on the terms such as unilateral appointment of arbitrators and the adhesion nature of such agreements. Such arbitration agreements have been subject to a series of lawsuits, the most recent being Uber v. Heller. Ultimately, the paper underscores the importance of protecting the rights of gig workers, who often face significant power imbalances when negotiating with large platforms, and calls for greater scrutiny of arbitration agreements to ensure that they are truly fair and just.
Re-Visiting The Concept Of Anti-Arbitration Injunctions In Light Of Interim Injunctions
Anusha Sarkar & Shaneel Mehta
Anti-arbitration injunctions [“AAI or AAIs ”] have been used as a tool for legal protectionism. However, scholars have justified AAI based on the consensual nature of arbitration. Indian courts have now gained the reputation of being anti-arbitration, due to the frequent issue of AAI, and the recently developing murky jurisprudence around interim AAI. The travaux préparatoires of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards [“New York Convention ”] do not render much support to AAI. Similarly, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States [“ICSID Convention”] establishes a stricter approach to AAI. In this article, the authors analyse the legal framework and approaches to AAI in India, Malaysia and other jurisdictions. The authors demonstrate how Indian courts have conflated AAI with anti-suit injunctions [“ASI ”], and hence broadened its scope. This position has further harmed the interest of the parties with the recent issuance of interim AAIs. The authors have demonstrated potential harmful effects of continuing on this path through a comparative analysis to Malaysia. Malaysia has taken a liberal approach in issuing AAI, and conflated them with ASI; thereby losing its status as a sought-after jurisdiction for arbitration. In contrast, other jurisdictions such as the United States of America [“US ”] and the United Kingdom [“UK ”] have restricted the scope of issue of AAI in international commercial arbitration. In light of this, the authors suggest that the principles of the ICSID Convention can be transposed to the New York Convention with respect to the subject matter of AAI. Further, it is imperative that India develops a more measured approach to issuing AAI which is only based on exceptional grounds.
The Issuance Of The Supreme Court Regulation No. 3 Of 2023: An Assessment Of How It Would Promote Arbitration In Indonesia
Eva Fatimah Fauziah & Sri Purnama
To ensure effectiveness of dispute resolution such as arbitration, underlying laws should be in harmony with international standards and cater the existing development developments. Indonesian arbitration law, the Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution [“AADR Law”], has remained the same since 1999 regardless there have been significant developments and evolution of the arbitration practice. Only after more than two decades there is finally an attempt to fill in the gaps existing in the AADR Law. This attempt came from the Supreme Court by issuing the Supreme Court Regulation No. 3 of 2023. The regulation provides more clarity regarding the appointment of arbitrators, right of recusal, and the examination of enforcement and annulment of arbitral awards. This article will showcase how these changes may affect the practice of arbitration in Indonesia.