Dispute Resolution International

Dispute Resolution International is the journal of the IBA's Dispute Resolution Section. It provides in-depth discussion of current developments and topical issues in all areas of dispute resolution, including litigation, arbitration, mediation and other areas of alternative dispute resolution, as well as negligence and damages.

Dispute Resolution International is edited by Lawrence Schaner, founder of Schaner Dispute Resolution, Chicago. Lawrence is assisted by an Editorial Board comprising leading practitioners from around the world.

Dispute Resolution International is distributed to all members of the IBA Dispute Resolution Section, giving it a readership of approximately 4,000. It is published twice a year and was launched in May 2007. Non-member subscriptions to Dispute Resolution International are also available, and individual articles are available to purchase from the IBA shop.

If you are interested in contributing to Dispute Resolution International, please contact Lawrence Schaner at: LSchaner@schanerlegal.com or Paul Crick at paulcrick@mac.com.

If you are not a member of the IBA, you can find out more about how to join here.

If you are interested in advertising in Dispute Resolution International, our latest media pack is available here.

Recognition for Dispute Resolution International
The Role of the Tribunal Secretary in International Arbitration: A Call for a Uniform Standard, by Michael Polkinghorne and Charles B. Rosenberg, published in the October 2014 issue of Dispute Resolution International, has been awarded Outstanding Professional Article by the International Institute for Conflict Prevention and Resolution. The award recognises articles published by academics and other professionals that advance understanding in the field of alternative dispute resolution (ADR).

• ISSN 2075 5333  • Vol 11, Iss 1-2  • £83.50 per issue

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Latest Issue - Vol 12 No 2 October 2018

In recent years, parties and arbitral institutions have increasingly adopted waiver agreements purporting to exclude any national court review of arbitral awards. Many national laws purport to permit this practice to varying degrees. Nonetheless, in reality, parties are never entitled to waive all court review of arbitral awards. This article examines the divergences across jurisdictions and the reasons for courts’ reluctance to let parties fully waive their rights to scrutiny of arbitral decisions.

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This article examines the growth in investor-state disputes in the telecommunications sector, exploring the targeted measures that states have adopted in order to re-assert control over, or extract greater value from, foreign investors. The author posits that this trend is largely the result of a belated recognition of the profit opportunities in the sector, and observes that at the heart of many such disputes lies a wrestle for a resource which is increasingly characterised as a vital national asset, namely spectrum. The article concludes by considering the impact of these disputes on the future of foreign investment in the telecoms sector.

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Manifest disregard for the law – the judicial-born concept that some US courts have treated as an independent ground for vacating arbitral awards – is a topic much discussed, and often disfavoured, in international arbitration circles. The Supreme Court of the United States seems only to have fuelled the debate over its validity and suitability by its opaque references to the concept since its origination in the 1953 case of Wilko v Swan and its indecision over whether the concept remains a valid, independent ground for annulment. The US Courts of Appeals, left to fend for themselves, have split into camps, each treating the concept with its own brand of judicial contempt or deference. Ultimately, the survival of the manifest disregard standard as an independent ground for vacatur seems of little consequence, as even those courts who have given it some degree of favour caution how difficult it is to satisfy.

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As arbitration’s publicity has increased in recent years, its public perception as a legitimate tool for international dispute resolution has decidedly decreased. Many condemn arbitration for lacking legitimacy, and being susceptible to bias and intransparency. For practitioners, however, such concerns will likely appear misguided, with a risk that they dangerously conflate otherwise separate notions of investment and commercial arbitration. Part of the problem may be that those criticising arbitration do so on the basis of misinformation and in response to emotionally charged rhetoric: problems potentially associated with the so-called ‘post-truth’ era. The question then becomes: what can be done to protect arbitration as a legitimate means of dispute resolution?
This article considers how the post-truth era poses a threat to arbitration as a mechanism for resolving international disputes. It focuses in particular on the differences between investment and commercial arbitration, and how they seek to fulfil different purposes. Reflecting on its origins on the one hand and its role in a globalised world on the other, the article looks at how arbitration is striving to enhance its public image and, importantly, how the arbitration community can defend itself in the face of criticism, however unfounded.

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Dispute resolution in a digitalised age allows parties to adduce sophisticated forms of documentary evidence to provide an arbitral tribunal with a visual impression of the subject matter of the arbitration. However, no demonstrative exhibit can surpass the eye-opening effect of a physical site visit, particularly in the field of construction disputes. Site visits are underutilised, but should be a tool of choice in international construction arbitration as they allow arbitral tribunals to obtain a first-hand visual impression of the issues in dispute and, in specific circumstances, to gather on-record evidence. To this end, site visits add forensic value in the resolution of construction disputes and fortify the factual basis of arbitral awards. Accordingly, parties and arbitral tribunals should overcome their reluctance to use site visits unless there are good reasons for not doing so. Before embarking upon a site visit, certain practical and legal issues must be considered in order to ensure the process is worthwhile and the parties’ fundamental procedural rights are protected.

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The critical attraction of international arbitration is that awards can be enforced worldwide. Under the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention, awards can normally be recognised and enforced in the over 150 states that are signatories to the Convention, and the bases to deny recognition are narrow. Such success has also given rise to parallel and overlapping proceedings: by the time a court is asked to enforce an award, at least one other court may have ruled on an application to confirm, annul or enforce that award. In this article, the author seeks to provide guidance to litigants and examine how courts in the United States asked to recognise and enforce a foreign award treat such prior foreign judgments. The article also examines how the US position compares with that of the English courts’ approach and discusses how these approaches fit within the broader res judicata and issue estoppel framework.

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