Court-Ordered Interim Measures in International Arbitration: A Comparative Approach

This paper argues that there is a distinct cross-border law concerning court-ordered interim measures in aid of international arbitration, which is made up of two key (intertwined) sources, namely: the relevant provisions of the UNCITRAL Model Law on International Commercial Arbitration and supporting case law and legislation in both Model Law states and non-Model Law states. The principles identified in this paper are assumed to qualify as general principles of law. In order for a court at the seat to grant interim relief in international arbitral proceedings the requesting party must demonstrate a prima facie case worthy of consideration, the likelihood of irreparable harm and a balance of inconvenience. There is at present no general consensus as to ex parte interim measures, with many states and national courts showing significant reluctance to grant these on account of the absence of procedural guarantees that they entail. In equal measure, in the absence of bilateral or multilateral treaties that allow national courts to recognize and enforce foreign interim measures in respect of arbitral proceedings seated abroad, states are equally reluctant to allow parties seated in other jurisdictions to approach their courts for interim relief on the ground that the other party has assets or interests there. Although the courts of some powerful nations allow for such requests, there is no general rule in this regard and none is expected in the near future

SIGNATURE OF MULTILATERAL TREATIES: STILL MEANINGFUL IN THE ERA OF TRANSNATIONAL LAW?

The function of signing multilateral treaties has always been perceived as a sine qua non element of inter-state agreements. Its evolution has witnessed several useful variations, such as definitive signatures, the ‘all states formula’, as well as the enhanced role of treaty depositaries with respect to the effect of signatures. The article argues that despite signature requirements in all multilateral treaties there is a clear trend towards alternative forms of agreement, whether between states or between states and non-state actors. The rise in the power of non-state actors has given rise to simplified forms of agreement where formalities, including treaty-type signatures, have largely been eliminated. While it is not at all argued that the function of signatures to treaties is anachronistic and of no use, the convergence of several formalities associated with treaties may explain the push towards simplified agreements

Disability and Transnational Arbitration: Human Rights Linkages and Reasonable Accommodations

Disability intersects with arbitration as regards the mental capacity of a party to enter into an arbitration agreement, the appointment of arbitrators with disability and grounds for removal thereof, accommodations during arbitral proceedings for arbitrators and counsel with disabilities, as well as the costs for all appropriate accommodations. This Article demonstrates that the right to a fair trial, which is universally recognized in arbitration, dictates that parties and arbitral institutions be free to select arbitrators of their choice, and no impediments may be imposed against arbitrators with disabilities other than that they are able to fulfill the functions of their mandate. Accommodations, however, are not enough. Arbitral institutions, the legal profession, and professional associations, in conjunction with the government, must undertake a sustained campaign to eliminate bias and stereotypes of disability and actively promote arbitrators and counsel with disabilities in arbitral proceedings. Finally, this Article shows that the cost to accommodate arbitrators and counsel with disabilities is less significant than multilingual arbitrations and, in any event, may be offset through synergies between arbitral institutions and governmental entities

English Courts and Transnational Islamic Divorces: What Role for Personal Liberty of Muslim Women?

English courts consider the validity of a talaq obtained abroad on the basis of the lex matrimonii, without examining whether the circumstance of the divorce, both factual and legal, offend English public policy. An anthropological inquiry into talaq obtained in most Muslim nations reveals that androcentric culture – as opposed to religious prescription as such – largely distorts the Quranic vision of this institution. This author suggests that English courts and the scholarly/religious community should entertain the notion of the contractual nature of nikah (marriage) in order to assess the consequences of the talaq. If a nikah is entered into without the wife’s unequivocal consent or under duress from family members then, as a contract, it may be declared voidable by the courts; the wife, however, would retain the right to seek redress from such a voidable contract. Moreover, besides comity and reciprocity, there is no other legal impediment as to why English courts cannot employ the Human Rights Act to counter foreign talaq obtained in violation of the wife’s fundamental human rights. This is particularly so where the wife repudiates the application of her personal law in favour of English family law, provided that this is done in a manner that does not expose her to accusations of apostas

The Rise of Transnational Commercial Courts: The Astana International Financial Centre Court

The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while at the same time being subject to several limitations that jeopardize its independence. As companies in the AIFC continue to grow in size and assets, the AIFC Court will inevitably become one of the key dispute resolution institutions in Asia over the next decade

Assemblies of Parties to Multilateral Treaties and Their Normative Authority

Assemblies of states parties to multilateral treaties are of a twofold nature: those that are active, entrepreneurial, and rally both the political and financial dimensions as well as the stakeholders of their underlying constitutive instrument and those that are content to merely serve as meeting mechanisms. Several assemblies have undertaken extensive funding campaigns, without which their mandate could not have been achieved. In turn, these progressive assemblies have made significant inroads in respect to transnational contracting and forging their limited international personality in such a way as to become credible entities in international relations. This model should be replicated in multilateral human rights treaties. This Article suggests the emergence of international political normativity, whereby the functions of assemblies reflect normative outcomes despite the absence of normative powers. The moralistic underpinnings of the assemblies’ functions have allowed them to adopt a range of measures that are susceptible to unopposed compliance. The Article demonstrates that not all assemblies venture or desire to undertake actions on the basis of international political normativity and are just as happy to serve as mere facilitators. This is the case of the assembly of the Disabilities Convention