International Arbitration and the Rule of Law: Contribution and Conformity
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?
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PREFACE, Andrea Menaker, General Editor
ICCA CONGRESS 2018
International Arbitration: The Big Picture
Sir Anerood Jugnauth, G.C.S.K.; K.C.M.G; Q.C.
Keynote Address to International Council for Commercial Arbitration Congress
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
Does Arbitration Contribute to the Rule of Law?
Moderator: Andrea Menaker
Rapporteur: Manish Aggarwal
Arbitration for Peace – The Iran-United States Claims Tribunal
Inter-State Arbitration of Disputed Sovereignty and Maritime Delimitation Issues
The Contribution of Investment Arbitration to the Rule of Law
Debate: To What Extent Does International Arbitration Foster Economic Development?
Moderator: Meg Kinnear
Rapporteur: Kennedy Melly
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
Due Process Considerations in the Constitution of Arbitral Tribunals
Three Scenarios That Raise Due Process Issues
A-2. Interim Measures Issued by Arbitral Tribunals and Domestic Courts
Moderator: Justice Shaheda Peeroo
Interim Measures Issued by Arbitral Tribunals and Domestic Courts – A South African Perspective
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
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
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
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
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
Shall National Courts Assist Arbitral Tribunals in Gathering Evidence?
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
Africa and the Changing Landscape of Investor-State Arbitration
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?
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
La Portée Internationale des « Jugements sur Sentence » Summary in English
The Effect of Foreign National Court Judgments Relating to the Arbitral Award: An Emerging Conceptual Framework?
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
James LB Allsop AO
International Arbitration and Conformity with International Standards of Due Process and the Rule of Law
Due Process in International Arbitration: Balancing Procedural Fairness and Efficiency
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
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
International Arbitration: The Making of a Safe Seat in Africa
The Development of International Arbitration in Mauritius
Pratique de l’arbitrage OHADA: bilan et perspectives
Summary in English
LIST OF PARTICIPANTS
LIST OF ICCA OFFICERS AND GOVERNING BOARD MEMBERS