Showing posts from June, 2020

Describe the primary alternative approaches to reviewing arbitration awards, and discuss ways those alternatives might be more or less desirable than the approach taken in Fidelity Management SA v Myriad International Holdings?

Arbitration has become an incredibly common and popular tool for parties who wish to resolve commercial disputes. Along with the lex mercatoria, arbitration has geographical benefits in that it circumvents the need for foreign parties to litigate in, what to them would appear, a foreign court within a foreign jurisdiction. [1] Arbitration is popular as it gives the disputing parties optimal control, not only can the choose the body or persons to arbitrate, but they can also elect where this arbitration is to take place. [2] The speed of such arbitration, notable from the WTO selection of arbitration as a dispute settlement mechanism, makes it even more attractive for commercial parties. [3]   The case of Fidelity Management SA v Myriad International Holdings [4] was followed by an even more significant decision in the House of Lords – the case of Lesotho Highlands Development Authority v Impregilo SpA. [5] Both of these cases significantly state that English courts are not to inte

Suggest a specific arbitration clause that can be incorporated into an international trade contract, explaining clearly why each element of the clause should be included. Also identify potential problems that should be avoided when selecting language for the clause.

The first thing to consider when it comes to arbitration clauses that are to be incorporated within a contract is the form that should be adopted. Will an oral agreement suffice? The answer to this question is no. S.5 of the Arbitration Act 1996 makes it clear that for Part 1 (the majority of the legislation) of the Act to apply to an arbitration choice, the agreement for choose arbitration must be one that is incorporated through writing.    The suggested arbitration clause used by many legal firms and recommended as such is as followed:   All disputes arising out of or in connection with or relating to the present contract, or the breach, termination or invalidity thereof, shall be finally settled under the 2012 version of the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said Rules. The seat of arbitration shall be London, UK. Procedure shall be governed by English law. The language to be used in the arbitral proc

What does Andrew Spalding, in his article “Unwitting Sanctions”, argue is problematic about the Foreign Corrupt Practices Act?

The Foreign Corrupt Practices Act 1977 came into force in the face of a culture of corruption that was harming the economy, society, and the democracy of institutions. [1] In his appraisal of the FCPA, Andrew Spalding concludes that whilst the aim of this Act was to encourage investment, the actual outcome has been converse to that which was intended and instead the act now deters such investment. [2] Spalding is of the opinion that w [3] Spalding argues that is detrimental to the US by reasons of the increased cost involved in doing business within such countries. This would seem to suggest that where bribery is a traditional element of doing business within a particular country it should not be uninterrupted. There are several arguments against bribery; the strongest counter-argument to Spalding’s contention of the increased cost being that bribery is rarely a definitive numerical calculation and therefore, it can add an unpredictable cost to the transactions. [4] here bribe