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Damages are a topic of central importance in international arbitration, being very often the principal concern of the parties, and an indication of the performance of their counsel. They are also one of the most complex topics. This book addresses the many competing factors that contribute to their nature and amount: while they are compensatory, they may be subject to counterclaims and set-offs, affected by failures to mitigate, or inflated by considerations such as interest and costs.
Providing a theoretical examination of the concept of arbitration, this book explores the place of arbitration in the legal process and examines the ethical challenges to arbitral authority and its moral hazards.
The growth of national economic regulation and the process of globalisation increasingly expose international transactions to an array of regulations from different jurisdictions. These developments often contribute to widespread international contractual failures when parties claim the incompatibility of their contractual obligations with regulatory laws. The author challenges conventional means of dispute resolution and argues for an interdisciplinary approach whereby disciplines such as international economic law, conflict of laws, contract law and economic regulations are functionally united to resolve international and multifaceted regulatory disputes. He identifies the normative foundation of contract law as an important determinant in this process, contending that contract law is essentially neutral and underpinned by the concept of corrective justice, while economic regulations are mainly prompted by distributive justice. Applying this corrective/distributive justice dichotomy to international contracts, the author critically assesses major conflict of laws approaches such as `proper law', `the Rome Convention' and `governmental interest analysis', which could disregard either public interest or private rights. The author, taking these theories into account, proposes an alternative two-dimensional interest analysis approach. He tests the viability of this approach with reference to arbitral awards and court decisions in various jurisdictions and concludes that it uniquely fits into the structure of international commercial arbitration. In adopting this approach arbitrators would take into account both corrective and distributive justice, and to the extent that corrective justice prevails, would be able to avert a total failure of the contract.
International arbitration is a remarkably resilient institution, but many unresolved and largely unacknowledged ethical quandaries lurk below the surface. Globalization of commercial trade has increased the number and diversity of parties, counsel, experts and arbitrators, which has in turn lead to more frequent ethical conflicts just as procedures have become more formal and transparent. The predictable result is that ethical transgressions are increasingly evident and less tolerable. Despite these developments, regulation of various actors in the system arbitrators, lawyers, experts, third-party funders and arbitral institutions remains ambiguous and often ineffectual. Ethics in International Arbitration systematically analyses the causes and effects of these developments as they relate to the professional conduct of arbitrators, counsel, experts, and third-party funders in international commercial and investment arbitration. This work proposes a model for effective ethical self-regulation, meaning regulation of professional conduct at an international level and within existing arbitral procedures and structures. The work draws on historical developments and current trends to propose analytical frameworks for addressing existing problems and reifying the legitimacy of international arbitration into the future.
This title provides the reader with immediate access to understanding the world of international arbitration. Arbitration has become the dispute resolution method of choice in international transactions. This book explains how and why arbitration works. It provides the legal and regulatory framework for international arbitration, as well as practical strategies to follow and pitfalls to avoid. It is short and readable, but comprehensive in its coverage of the basic requirements, including changes in arbitration laws, rules, and guidelines. In the book, the author includes insights from numerous international arbitrators and counsel, who tell firsthand about their own experiences of arbitration and their views of the best arbitration practices. Throughout the book, the principles of arbitration are supported and explained by the practice, providing a concrete approach to an important means of resolving disputes.
This book rewrites the story of classical Chinese philosophy, which has always been considered the single most creative and vibrant chapter in the history of Chinese philosophy. Works attributed to Confucius, Mozi, Mencius, Laozi, Zhuangzi, Xunzi, Han Feizi and many others represent the very origins of moral and political thinking in China. As testimony to their enduring stature, in recent decades many Chinese intellectuals, and even leading politicians, have turned to those classics, especially Confucian texts, for alternative or complementary sources of moral authority and political legitimacy. Therefore, philosophical inquiries into core normative values embedded in those classical texts are crucial to the ongoing scholarly discussion about China as China turns more culturally inward. It can also contribute to the spirited contemporary debate about the nature of philosophical reasoning, especially in the non-Western traditions. This book offers a new narrative and interpretative framework about the origins of moral-political philosophy that tracks how the three normative values, humaneness, justice, and personal freedom, were formulated, reformulated, and contested by early Chinese philosophers in their effort to negotiate the relationship among three distinct domains, the personal, the familial, and the political. Such efforts took place as those thinkers were reimagining a new moral-political order, debating its guiding norms, and exploring possible sources within the context of an evolving understanding of Heaven and its relationship with the humans. Tao Jiang argues that the competing visions in that debate can be characterized as a contestation between partialist humaneness and impartialist justice as the guiding norm for the newly imagined moral-political order, with the Confucians, the Mohists, the Laoists, and the so-called fajia thinkers being the major participants, constituting the mainstream philosophical project during this period. Thinkers lined up differently along the justice-humaneness spectrum with earlier ones maintaining some continuity between the two normative values (or at least trying to accommodate both to some extent) while later ones leaning more toward their exclusivity in the political/public domain. Zhuangzi and the Zhuangists were the outliers of the mainstream moral-political debate who rejected the very parameter of humaneness versus justice in that discourse. They were a lone voice advocating personal freedom, but the Zhuangist expressions of freedom were self-restricted to the margins of the political world and the interiority of one's heartmind. Such a take can shed new light on how the Zhuangist approach to personal freedom would profoundly impact the development of this idea in pre-modern Chinese political and intellectual history.
International Chamber of Commerce Arbitration is a hands-on guide providing a critical evaluation of the advantages and disadvantages at every step in the arbitral process including practical facts, figures, pragmatic suggestions and warnings.The book is essential to anyone who is involved in ICC arbitration, or who may have to consider the use of an ICC arbitration clause. Published in cooperation with the International Chamber of Commerce, this text covers every aspect of ICC arbitration. The authors, seasoned experts, provide adetailed description of the arbitral process from the formation of the agreement to arbitrate to the appeal of the enforcement, covering in detail the important rulings of the ICC and their potential impact on future awards. Appendices include a table of cases, table of arbitral awards, table ofauthorities, table of articles on the 1998 ICC Arbitration Rules, and a comprehensive index.