Abstract

Institutional Arbitration: Harmony, Disharmony and the “Party Autonomy Paradox” In international arbitration, there is an intrinsic tension between the autonomy of arbitral institutions and that autonomy of the parties. This tension is caused by the increasing role played by arbitral institutions, both with respect to the quasi–normative force of their rules and their enhanced decisional powers in the implementation of these rules. In light of the vast authority granted to some arbitral institutions, the quality of institutional administrative decision–making is sometimes even closely linked to the person holding the relevant office. Due to the potentially harmful effect on party autonomy, modern institutional arbitration is regarded by some as not entirely in keeping with the principle of the primacy of the parties’ intentions. Others even see the interventionist attitude of some arbitral institutions as an additional ground for legitimacy concerns * Professor of domestic and international civil and commercial law, comparative, private international and banking law, Founder and Executive Director, Center for Transnational Law (CENTRAL), University of Cologne, Germany; Board Member and Past President, German Arbitration Institute (DIS); Council Member, ICC Institute of World Business Law; Member, ICC Commission on Arbitration and ADR; Director of the Cologne Academies on International Business Negotiation, Mediation and Arbitration; Co–Editor of Arbitration International; practicing international arbitrator. ARBITRAJE. REVISTA DE ARBITRAJE COMERCIAL Y DE INVERSIONES, 2018 Arbitraje, vol. XI, no 2, 2018, pp. 335–364 ISSN 1888–5373 336 which are being raised with respect to the international arbitral system as a whole. Where the arbitration rules grant the institution discretion to decide matters concerning the administration of the proceedings, party agreements should, as a rule, trump the discretion of the institution. This approach serves to avoid potential damage to both the attractiveness and the legitimacy of institutional arbitration inflicted by the party autonomy paradox.

Abstract

Penelitian ini membabas mengenai ketentuan prosedur dipercepat dalam ICC dan
\nSIAC. Ketentuan tersebut bertentangan dengan asas kebebasan berkontrak karena
\ntelah mengenyampingkan perjanjian arbitrase yang merupakan sumber hukum
\nyang utama dan terpenting dalam arbitrase. Penulis ingin membandingkan
\nketentuan expedited procedure yang terdapat di ICC dengan ketentuan expedited
\nprocedure yang terdapat di SIAC karena ketentuan expedited procedure pada
\nkedua lembaga tersebut memiliki perbedaan yang kontras.
\nPenelitian ini menggunakan tipe penelitian yang bersifat yuridis normatif serta
\npendekatan yang digunakan adalah pendekatan komparatif dan pendekatan
\nkonseptual. Teknik pengumpulan bahan hukum yang digunakan adalah studi
\nkepustakaan (library research) dan studi lapangan (field research).
\nHasil penelitian ini menunjukkan bahwa ketentuan expedited procedure tidak
\nbertentangan dengan asas kebebasan berkontrak karena pada dasamya ketentuan
\nexpeditedprocedure dilakukan berdasarkan kesepakatan para pihak. Perbandingan
\nketentuan expedited procedure antara ICC dan SIAC menunjukkan persamaan
\nmaupun perbedaan dalam beberapa aspek. Dalam hal persamaannya, yaitu kedua
\nketentuan expedited procedure tersebut memberikan kewenangan kepada
\nmahkamah arbitrase untuk meniadakan pemeriksaan lisan, memutus sengketa
\nhanya berdasarkan dokumen, dan mewajibkan pelaksanaan konferensi
\nmanajemen. Dalam hal perbedaannya, yaitu meliputi beberapa aspek diantaranya
\njumlah maksimal sengketa, penerapan ketentuan, kewenangan lembaga atau
\nmahkamah untuk tidak menerapkan ketentuan, jumlah arbiter, percepatan
\npenunjukkan arbiter, urgensi luar biasa, klausula rekomendasi, batas waktu
\npemberian putusan akhir, dan putusan akhir yang disertai alasan.

Abstract

Arbitration agreement between the parties is an important source of law in the arbitration proceeding, especially in commercial arbitrations. The commercial arbitration in Indonesia is monitored by permanent commercial arbitral tribunals for various fields. With the increase of commercial transactions, arbitration too has become a necessity. Out of court settlement has become the choice of business entities to resolve their disputes, which is consistent with the global practices. The problems begin when according to Indonesian Law district courts are not authorized to adjudicate disputes of parties bound by arbitration agreements. This grants autonomy to arbitration tribunals such as Indonesian National Board of Arbitration (Badan Arbitrase Nasional Indonesia)-BANI and the parties are liable to accept its verdict. This study proposes to understand the arbitration law of Indonesia, particularly to highlight its autonomous nature and to view it in the light of limitations and constraints. The result of discussion will be an input for Indonesia to amend its Arbitration Law.

Abstract

While the last decade will be remembered for the splash created by the invention of Emergency Arbitration and its subsequent wide adoption across institutional rules, this article proposes that the next decade should be known for the Renaissance of Expedited Arbitration. There is little doubt that Emergency Arbitration responded to certain user needs and sought to fill a void in international arbitration related to interim relief ordered by an arbitrator prior to the constitution of the tribunal. However, the label Emergency Arbitration ‘over-promised’ by suggesting to some users that under this innovation they could achieve a quick final resolution of their dispute. Now that the ability for parties to obtain pre-tribunal-constitution interim relief is settled, the arbitral community must respond to the user’s desire to obtain swifter final resolution. This article proposes that the best way to achieve that end is through the expansion of the parameters associated with the applicability of the ‘expedited track’ in arbitral rules. By expanding the default application of these rules, users would have the ability to obtain swifter final resolution of more disputes while retaining safeguards in situations where the arbitral tribunal found that the expedited track would move ‘too fast’ for the dispute at hand. Expedited Arbitration, Emergency Arbitration, Interim Relief, hundred-Day Arbitration, Enforceability, ICC Commission Report Emergency Arbitrator Proceedings, Interim Order, Efficiency, Time, Cost

Abstract

<jats:p>The choice of paradigm in dispute resolution through arbitration raises a fundamental question: should the arbitral tribunal render its decision based on the law or ex aequo et bono? Most legal scholars affirm that the disputing parties have the full authority to dictate the tribunal's choice of paradigm in resolving disputes. This perspective, in Indonesia, is justified by two grounds: the Elucidation of Article 56(1) of Arbitration and Alternative Dispute Resolution Law, and the party autonomy principle in arbitration. Against this mainstream view, this paper repositions the role of arbitrators, emphasizing that they should possess autonomy -rather than being dictated to-when choosing the paradigm dispute resolution. This paper concludes that the choice of paradigm should rest within the authority of arbitrators.</jats:p>

Abstract

The conflict of BANI's founders and administrators to court institutions resulted in the Indonesian Arbitration becoming unattractive and inappropriate for cross-border business players to resolve trade disputes between them. In fact, without the conflict BANI has been overwhelmed by competition with international arbitration bodies, because they have more competitive advantages such as objective and expedient, cost-effective, quick settlement and decisions are easily accepted or enforced in any part of the country. This study identifies and compares the weaknesses and or disadvantages of BANI to face international arbitration bodies, and recommends relevant matters to improve BANI's performance and services in order to accommodate the needs of cross-border business actors. Keywords—Comparative-Weaknesses, BANI, Business Actors, Expansion, Globalization, International-Arbitration.

Abstract

The competition of jurisdictions for resolving cross-border disputes at the present stage leads to the improving and modernization of the rules of arbitration centers, which is primarily aimed at streamlining the procedure for considering a specific case. Depending on the size of the claims and the complexity of the dispute, opportunities are suggested to simplify the procedure, which entails reducing the time for the consideration the case and reducing the costs of the parties to arbitration. The authors investigate novelties in the field of the regulation of expedited arbitration; analyze the procedural elements, the exclusion of which from the arbitration procedure leads to the optimization of the dispute resolution procedure.It has been revealed that: 1. In the current economic conditions, with the desire for the free circulation of goods and services, competition of arbitration centers leads to improving the procedures and optimization of the rules of arbitration proceedings. The acceleration of dispute resolution through arbitration is facilitated, first of all, by simplification of the procedure compared to standard rules. 2. One of the key elements of the simplification of arbitration should include the consideration of the dispute as part of the sole arbitrator, who, as a rule, is appointed by the arbitration institution itself, which reduces the time required to form the panel of arbitrators and, as a result, reduces the costs of the parties. 3. Consideration of a dispute without an oral hearing, only based on the documents submitted and the parties' written positions, while limiting the number of exchanges of explanations, enables the arbitral institution to reduce costs and establish a lower arbitration fee. 4. The latest trend is the consolidation of the simplified procedure as a general rule for disputes within a certain amount. At the same time, the establishment of one or another restrictive level depends on the policy of a specific positioning carried out by the arbitration institution. 5. Given the flexibility of arbitration procedures, the difficulties in enforcing arbitral awards in foreign jurisdictions where judges will often have to evaluate the compliance with arbitration rules and the parties’ agreements provided for in the New York Convention may become a negative element.

Abstract

On April 25, 2008, the German Institution of Arbitration (DIS) presented the new Supplementary Rules for Expedited Proceedings. The new Rules allow parties and arbitrators to conduct an arbitration within six months (sole arbitrator) or nine months (three–member tribunal). To achieve this goal, the time limits provided for in the DIS Arbitration Rules 1998 for the nomination of arbitrators are shortened, four–week deadlines for the submission of briefs are fixed in the Supplementary Rules and the common interest of the parties in the expedition of the arbitration becomes a guiding maxim for the exercise of the tribunal’s procedural discretion.Also, the arbitral tribunal is expected to establish at the outset of the proceedings a procedural timetable and to identify to the parties at an early stage of the proceedings the issues that it regards as relevant and material to the outcome of the case.

Abstract

Ideally, arbitration is an alternative dispute resolution that frequently applies in subjects of international commerce. In fact, it is the determination of an issue without resorting to the court. The very first issue of concern that needs to be established in adjudicating any matter of arbitration is jurisdiction. Without doing so, no question of a substantive issue of a case can be addressed. In this case, several issues regarding jurisdiction came into question in the PCA case No. 2015-40 involving IMFA and The Republic of Indonesia. Thus, while the jurisdictional objections filed by the respondent were unanswered, the tribunal advanced and addressed the merits of the case. It was after filing its reply; therefore, this paper shall research the effect of such jurisdictional ambiguities on the enforceability of an award.The method in this paper is qualitative, based on existing literature, the principles of party autonomy, and kompetenz-kompetenz. The contention is that although technically possible to retain jurisdiction, it is not advisable to overlook such jurisdictional objections simply because the outcome is ambiguous and one sets a bad precedent.