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International Arbitration and the Rule of Law: Contribution and Conformity

Edited by Andrea Menaker
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Overview

Volume 19 of the Congress Series contains the proceedings of ICCA’s 2016 Mauritius Congress, the first ICCA Congress held in Africa.

In this volume, renowned practitioners, scholars and jurists from the region and around the world explore the contribution of arbitration to the rule of law and economic development; the conformity of arbitration with international standards of due process and the rule of law; and the benefits and challenges of arbitration in Africa. Topical issues of interest for practitioners, academics and students of arbitration – in the region and internationally – include:

  • Due process issues in constituting the arbitral tribunal and challenging its members
  • Interim measures issued by arbitral tribunals and domestic courts
  • Burden, standard and types of proof in the corruption defence
  • What to do (and what to avoid doing) to prepare a persuasive case
  • Do post-award remedies ensure conformity of the arbitral process with the rule of law?
  • Do rules and guidelines properly regulate the conduct of arbitration?
  • The interface between domestic courts and arbitral tribunals
  • What are appropriate remedies for findings of illegality in investment arbitration?
  • The effect of foreign national court judgments relating to the arbitral award
  • What does the future hold for investment arbitration in Africa and beyond?
Pages 1120
Publish Date 09/22/2017
Product Line Kluwer Law International
ISBN 9789041194459
SKU 9041194452
Table of Contents

PREFACE, Andrea Menaker, General Editor

ICCA CONGRESS 2018

Special Addresses

Mohamed ElBaradei
International Arbitration: The Big Picture

Sir Anerood Jugnauth, G.C.S.K.; K.C.M.G; Q.C.
Special Address

Ban Ki-moon
Keynote Address to International Council for Commercial Arbitration Congress

Lord Hoffmann
Closing Address

Plenary Session One International Arbitration and Its Contribution to the Rule of Law

Chair: Andrea Menaker

Abdulqawi A. Yusuf
The Contribution of Arbitration to the Rule of Law – The Experience of African Countries

Part A
Does Arbitration Contribute to the Rule of Law?

Moderator: Andrea Menaker
Rapporteur: Manish Aggarwal

Karl-Heinz Böckstiegel
Arbitration for Peace – The Iran-United States Claims Tribunal

Loretta Malintoppi
Inter-State Arbitration of Disputed Sovereignty and Maritime Delimitation Issues

Payam Akhavan
The Contribution of Investment Arbitration to the Rule of Law

Part B
Debate: To What Extent Does International Arbitration Foster Economic Development?

Moderator: Meg Kinnear
Rapporteur: Kennedy Melly

Amanda Rawls
Improving the Impact of International Arbitration on Economic Development

Philip J. McConnaughay
The Potential of Private Commercial Arbitration for Facilitating Economic Growth in Less Developed Countries

A. PRACTICE STREAM

A-1. Constituting the Tribunal & Challenging Its Members: Due Process Issues and Concerns

Moderator: John M. Ohaga

Charles Nairac
Due Process Considerations in the Constitution of Arbitral Tribunals

Sarah Grimmer
Three Scenarios That Raise Due Process Issues

A-2. Interim Measures Issued by Arbitral Tribunals and Domestic Courts

Moderator: Justice Shaheda Peeroo

Des Williams
Interim Measures Issued by Arbitral Tribunals and Domestic Courts – A South African Perspective

Daniel Levy
Emergency Arbitrators: Characters in Search of Author

A-3.The Corruption Defense: Burden, Standard, and Types of Proof

Moderator: Vladimir Khvalei

Claus von Wobeser
The Corruption Defense and Preserving the Rule of Law

Domitille Baizeau and Tessa Hayes
The Arbitral Tribunal’s Duty and Power to Address Corruption Sua Sponte

Abdulhay Sayed
Duplicity in Corruption and Arbitration: Dealing with the Evidentiary Gap

A-4. How to Prepare a Persuasive Case:
10 Things to Do and to Avoid When
(i) Preparing Written Submissions,
(ii) Examining Witnesses, and
(iii) Presenting Oral Argument

Moderator: Barton Legum

Toby T. Landau QC
Dysfunctional Deliberations and Effective Advocacy

David J. A. Cairns
The Premises of Witness Questioning in International Arbitration Annex: Ten Proposals for Effective Advocacy

Brigitte Stern
How to Prepare a Persuasive Case: The Ten Commandments

A-5. Do Post-award Remedies Appropriately Ensure Conformity of the Arbitral Process with the Rule of Law?

Moderator: Malcom Holmes

Kamal Shah
Conformity of the Arbitral Process with the Rule of Law in the Context of Post-award Remedies

Annex I: Arbitration Centres in Africa 
Annex II: African Signatories to the 1958 New York Convention

Sae Youn Kim and Marieke Minkkinen
An Asian Perspective on the Enforcement of Annulled Awards

Daphna Kapeliuk
Do Post-award Remedies Appropriately Ensure Conformity of the Arbitral Process with the Rule of Law? A View from the Middle East

B. ACADEMIC STREAM

B-1. The Interface Between Domestic Courts and Arbitral Tribunals

Moderator: Gaston Kenfack Douajni

George A. Bermann
The Role of National Courts at the Threshold of Arbitration

Carine Dupeyron
Shall National Courts Assist Arbitral Tribunals in Gathering Evidence?

Emilia Onyema
The Jurisdictional Tensions Between Domestic Courts and Arbitral Tribunals

B-2. Investment Arbitration in Africa and Beyond: What Does the Future Hold?

Moderator: Yas Banifatemi

Judge Charles N. Brower and Michael P. Daly
A Study of Foreign Investment Law in Africa: Opportunity Awaits

Ucheora Onwuamaegbu
Africa and the Changing Landscape of Investor-State Arbitration

Nicolas Angelet
Financing Investor-State Dispute Settlement: Is There a Role for the African Development Bank?

B-3. Equality of Arms in International Arbitration: Do Rules and Guidelines Level the Playing Field and Properly Regulate Conduct?

Moderator: Janet Walker

Christopher Lau SC
Do Rules and Guidelines Level the Playing Field and Properly
Regulate Conduct? – An Arbitrator’s Perspective 
Annex I: Questionnaire – Arbitrator 
Annex II: Questionnaire – Counsel

Paula Hodges QC
Equality of Arms in International Arbitration: Who Is the Best Arbiter of Fairness in the Conduct of Proceedings?

Felix Dasser
Equality of Arms in International Arbitration: Do Rules and Guidelines Level the Playing Field and Properly Regulate Conduct? – Can They? Will They? Should They? The Example of the IBA Guidelines on Party Representation

B-4. The Effect of Foreign National Court Judgments Relating to the Arbitral Award: A Conceptual Framework

Moderator: Salim Moollan

Sébastien Besson
La Portée Internationale des « Jugements sur Sentence » Summary in English

Maxi Scherer
The Effect of Foreign National Court Judgments Relating to the Arbitral Award: An Emerging Conceptual Framework?

Pierre Mayer
The French Approach as a Starting Point for General Reflections on the Recognition of Foreign Award Judgments

B-5. What Are Appropriate Remedies for Findings of Illegality in Investment Arbitration?

Moderator: Mohamed Abdel Raouf

Jean Kalicki, Mallory Silberman and Bridie McAsey
What Are Appropriate Remedies for Findings of Illegality in Investment Arbitration?

Nassib G. Ziadé
Curing the Illness Without Killing the Patient: Prescribing Appropriate Remedies for Findings of Illegality in Investment Arbitration

Plenary Session Two
International Arbitration and Its Conformity with the Rule of Law

Moderator: Doug Jones
Rapporteur: Melissa Magliana

KEYNOTE ADDRESS:
James LB Allsop AO
International Arbitration and Conformity with International Standards of Due Process and the Rule of Law

Pallavi Shroff
Due Process in International Arbitration: Balancing Procedural Fairness and Efficiency

Philippe Pinsolle
The Need for Strong Arbitral Tribunals

Plenary Session Three
Spotlight on Africa: Perspectives on Arbitration

Moderator: Funke Adekoya, SAN
Rapporteurs: Ina Popova and Bethlehem Asmamaw

Vlad Movshovich
International Commercial and Treaty Arbitration in South Africa and the Region

John Miles, Nicola Muriuki and Laura Lusiji
The Development of International Arbitration in Africa

Mohamed S. Abdel Wahab
Glocalizing Africa in a Globalized World: Trade, Investment and the Changing Landscape of International Arbitration – A Promise to Fulfill?

Benoît Le Bars
International Commercial Arbitration in Africa – The Whole Nine Yards

Olasupo Shasore, SAN
Arbitrating Disputes in African Seats and Arbitral Centres: A Nigerian Perspective

Rukia Baruti
International Arbitration: The Making of a Safe Seat in Africa

Thierry Koenig
The Development of International Arbitration in Mauritius

Marie-Andrée Ngwe
Pratique de l’arbitrage OHADA: bilan et perspectives 
Summary in English

LIST OF PARTICIPANTS

LIST OF ICCA OFFICERS AND GOVERNING BOARD MEMBERS

Volumes