Transnational litigation

The seat of arbitration seems to be one of the most important issues to be agreed within an arbitration agreement. It directly influences a number of issues: arbitrability, determination of the governing law, whether substantive or procedural, and determination of the place for the proceedings on annulment of the arbitral award (and for the exercise of the juge d´appui and supervisory functions of courts with respect to arbitration). The examples of many countries clearly illustrate that the ideas of the denationalization of arbitration are somewhat chimerical, especially because the states desire to preserve a certain degree of control over arbitration; it also demonstrates the fact that the denationalization of arbitration generally does not even correspond to the actual interest of the parties. The reason often inheres in the greater security guaranteed in localized proceedings. Consequently, the denationalization of arbitration has never been fully implemented, and it appears that it has become a very marginal issue.

A notre chère chère famille : notre mère Hassana et Mahamane notre père sans oublier Aboubakar, Oumarou nos frères et Djamila, Maimouna nos soeurs. Aux Professeurs T. Djacoba et B. Pascale, qui par leurs valeurs exemplaires sont un modèle pour nous.

In 1780, the well-known publicist and publisher from Berlin, Friedrich Nicolai, noticed that in the Viennese suburb called Leopoldstadt:

‘one meets many Turkish men. They live in the City around the Fleischmarkt, where they also have warehouses for their goods. However, they come here in part for business, and in part because the nearby bridge conveniently has a coffeehouse. It looks eccentric that some go dressed half Turkish and half German’.

The eccentricity in the eye of the Prussian traveller meets the surprise that we sometimes express in the face of the religious and cultural diversity of the early modern metropolis, and this in turn questions deeply a present world obsessed by its cultural identities. Although we tend to reify otherness, studying the Ottoman population in eighteenth-century Vienna paves the way to another understanding of cosmopolitanism dynamics. It forces us to move the focus of history of foreigners away from cultural issues to an examination of the overlapping and crisscrossing administrative, social and urban dimensions of the pragmatic process of social integration.
L’Orient à Vienne is first a history of the Austrian enlightenment. Throughout the eighteenth century the reorganisation of the management of Oriental affairs benefited a new political elite involved in – and taking advantage of – the profound reform of the monarchy and supporting enlightened absolutism at the same time. However, this elite progressively spread out into several rival clienteles, which competed to control the management of Turkish trade and diplomacy, because of the influence it had on the government and the personal enrichment it generated. The Oriental Academy, established in 1754 to train young scholars in Turkish, Arabic and Persian and to serve in the Administration in the Ottoman Empire – as interpreters, chancellors and diplomats – was actually nothing but the incubator of the Chancellor’s creatures. The history of Oriental knowledge fits in with a socio-political history of the administration and was not restricted to artificial national boundaries. Indeed, the emergence of this elite was based on deep economic, social and political connections with Ottoman society and especially with Ottoman subjects in Vienna, as the Conscription of the Turks and Turkish of 1767 testifies.
Although historians used to identify and divide them into distinct nations and diasporas – overstressing their ethnic/religious/cultural features –, Muslim, Sephardic, Armenian and Greek merchants actually proceeded along similar paths of life and similar practices in the city. They were a population, more than a community, that represented about one per cent of the city’s inhabitants in 1775 since, far from being exclusively populated by merchants, it was composed of diverse economic actors, from janissaries to cooks, and was gender diverse, since children represented the biggest component. Studying merchants draws a new economic and social geography of the Austrian monarchy wide open to the Ottoman Empire, and it presents Vienna as a hub between Turkey, the Holy Roman Empire, Central Europe and the Adriatic Sea. Plus, Ottoman trading companies were transcontinental, religiously plural and they constantly interacted with local merchants, administrators and diplomats.
Indeed, the familiarity of Ottoman merchants with the Viennese political elite and its clients played a significant role in reorienting Austrian commercial policy in favour of the Ottoman merchants and in strengthening the authority of the administration over the city. Ottomans gave the Emperor the excuse to liberalize Viennese trade, thus far controlled by a bourgeoisie granted with economic and political privileges. Plus, Ottomans symbolically lived under the protection of the administration, set up in buildings and blocks owned by the administrators of trade and diplomats, strategically located in the old merchant area of the city, where they could find both housing and warehousing. They became members of the elite urban kinship. Being an Ottoman became so appealing that it guaranteed the social integration of the subjects of the Sultan and made more valuable their legal and economic condition, rather than being an “Imperial and Royal subject” of the Habsburg monarch. Moreover, while they were tied with the Viennese administrative elite, the Ottoman merchants systematically reaffirmed their belonging to the Ottoman Empire symbolically by joining the corteges of the envoys of the Grand Seigneur, or in claiming their political identity in case of litigation. Indeed, just as the merchants did, Ottoman diplomats also bonded with the reforming Austrian elite and the aristocracy in the common purpose of securing and promoting Ottoman trade in Central Europe and, in this way, strengthened their respective economic and political clientele in both Vienna and Istanbul.
Austrian administrators, Ottoman merchants and ambassadors formed a milieu, an urban geography that calls for a reinterpretation of the history of eighteenth-century Vienna and a deconstruction of diaspora patterns. The installation of the Ottomans in the city didn’t depend at all on some community logic but on the function of the urban space, where they imbedded themselves and their economic activity. Using such a presence as a contrasting medium reveals the economic heart of the city and allows us to observe its workings. Before everything, it enables us to understand that Vienna was a very attractive city port on the Ottoman trading route, presenting a logic of settling and blending quite similar to Venice, Livorno or Smyrna, usually much more emphasized in the historiography. This calls for an opening up of Mediterranean history and a questioning of the common idea of a decline of cross-cultural trade during the eighteenth century. This meets the new history of an opened, fluid and vibrant Central Europe. It undermines the prejudices of both our post-Soviet and post-9/11 conception of what is Europe.
Finally, this study tempers the role played by the cultural dimension in the globalised world and warns against overstressing ethno-religious features in national politics and in everyday life. It breaks with the sacralisation of differences and calls for a reorientation of the focus of the social sciences on the economic and social logic that generates the social bonding and blending, even in a cross-cultural context.

Review:

Journal of Modern History: http://www.journals.uchicago.edu/doi/abs/10.1086/688817

Journal of Early Modern History: http://booksandjournals.brillonline.com/content/journals/15700658

Revue d'Histoire Moderne et Contemporaine: https://www.cairn.info/revue-d-histoire-moderne-et-contemporaine.htm

Bulletin critique des Annales islamologiques: http://www.ifao.egnet.net/bcai/31/

Zeitschrift für Historische Forschung : http://ejournals.duncker-humblot.de/toc/zhf/44/2

This chapter documents the extreme stresses that cyberspace applies to state law by examining how private international law, or conflict of laws, has responded to the online global world. This highlights both the penetration of globalization into the 'private' sphere and the strongly 'public' or collective political nature of much of the 'private' ordering through national law. The chapter shows that the nation state is asserting itself against the very phenomenon-globalization (through cyberspace)-that threatens its existence, and does not shy away from accepting the fragmentation of this global cyberspace along traditional political boundaries as collateral damage to its own survival. Yet, the frequent appeal to international human rights normativity in recent conflicts jurisprudence suggests an awareness of the unsuitability and illegitimacy of nation state law for the global online world.

This essay briefly explains how Darul Islam developed, its relationship with Indonesian history and the role it has played in promoting the issue of Jihad in Indonesia. Literally, Darul Islam means Islamic State.  The history of Darul Islam starts with an explanation of the complex character of Kartosuwiryo, the founder of Darul Islam, and his perception of Islam. The essay moves on to explain the complex historical background that led to the birth of Darul Islam and its impact on modern Indonesia. Finally, as it is claimed that Darul Islam is now promoting Jihad, the basic concept of Jihad (referred to in The Concept of Jihad and Islamic Radicalism in Indonesia )  is compared with Darul Islam’s view of Jihad or Holy War. This is particularly important in understanding the driving ideology behind Darul Islam which makes its alleged alliance with Jemaah Islamiyah possible.

Among so many writings devoted to the third-party funding phenomenon, very few elaborate on one specific feature of this business model. Rather than a hidden facet, it is a real overarching characteristic, amounting to a fundamental principle of law: the right of access to justice. This aspect may have a potential impact in investment arbitration: serving as a capsule for new perspectives on the third-party funding realm, it may lead us to consider that a third-party funding investment is a protected investment under international investment agreements.
On the other hand, consideration of recent developments and the experience of financial products in the investment arbitration setting may also provide additional grounds to posit such protection.
This article endeavours to assess whether this protection may be accorded to third-party funding business models.

This course will explore the field of international commercial arbitration, which has become the default method of dispute resolution. Students can expect to study both Philippine and foreign commentaries, statutes and case law on the subject.  Topics include (1) an introduction to the field of commercial arbitration, now the “main” – as opposed to “alternative” – mode of dispute resolution; (2) domestic arbitration in the historical perspective; (3) UNCITRAL Model Law, New York Convention, other treaty frameworks, and their international responses; (4) the arbitration process, from agreement to enforcement; (5) judicial policing of arbitration; (6) the development of the function of arbitration in foreign investment law; (7) arbitration in state contracts; (8) making use of special opportunities for clients; (9) survey of existing Philippine laws and rules on ADR; and (10) arbitration and the Rule of Law.

This article considers the varying judicial approaches to the question of incorporation of arbitration agreements by reference to another contract, schedule of terms, or trading rules. In particular, attention is directed to the approach taken by English courts in considering whether a subsequent holder of a bill of lading is bound by an arbitration agreement contained in a charterparty. In that context, English courts required an express reference in a bill of lading to the charterparty arbitration clause before it could be regarded as part of the contract. General words purporting to incorporate the terms and conditions of a charterparty would not be sufficient. This article examines the development of this strict approach to incorporation in the maritime context, its application to contractual disputes outside that context and recent case law signalling a more flexible approach to the question based on the intention of the parties involved.

This article presents a study of the so-called ‘unilateral’ (‘optional’, ‘hybrid’) jurisdiction clauses combining arbitration and choice of court options, which business tends to favour as such clauses seek to designate a method of dispute resolution that provides a more favourable position for one of the parties to an agreement and ensure better enforcement against a debtor’s assets. However, there are a growing number of jurisdictions where courts have issued decisions that declare such clauses either invalid or as having a significant defect. This study makes a review of both common law and continental jurisdictions and focuses particularly on a number of decisions issued recently in continental jurisdictions making an assessment of the arguments that are typically employed by courts in order to find that a unilateral clause is invalid. Finally, this study proposes a method of interpretation of unilateral jurisdiction clauses which favours their validity or, where there is a significant defect, proposes partial invalidity and severance instead of invalidity of the entire clause.

In common law jurisdictions litigants are free to represent themselves in person. A right to self-representation in civil proceedings has been taken for granted as an obvious expression of the right of access to court. Consequently, no attempt has been made to investigate the theoretical justification of self-representation, and mandatory legal representation has never been contemplated. This article identifies three possible reasons for the conflation of the right to litigate in person with the right of access to court: (1) the long history of self-representation, (2) the conceptual perception of procedural rights as necessarily personal, and (3) the empirical belief that litigants in person are typically poor. The article challenges the capacity of these reasons to justify vesting litigants with an unfettered power to decide whether to represent themselves in person or to instruct counsel. It argues that as a matter of principle the right of access to court does not entail a right to self-representation in all circumstances. When a litigant in person lacks the skills and expertise to conduct his or her case competently and imposes a disproportionate strain on court resources, the court should be entitled to require the litigant to obtain legal representation as a prerequisite for proceeding with the case.

COMMENTARIES ON PRIVATE INTERNATIONAL LAW
VOL. 2, ISSUE 2, WINTER 2016

EDITOR’S NOTES

We are pleased to present the second issue of Commentaries on Private International Law, the newsletter of the American Society of International Law (ASIL) Private International Law Interest Group (PILIG). As readers of the newsletter know, the name of our newsletter, Commentaries, represents a modest tribute to one of the founding fathers of modern PIL, Joseph Story, by borrowing the name of his seminal book “Commentaries on the Conflict of Laws, foreign and domestic,” and only replacing “Conflict of Laws” with “Private International Law” to better reflect the broader object of our discipline today.

The primary purpose of our newsletter is to communicate news on PIL. Accordingly, the newsletter attempts to transmit information on new developments on PIL rather than provide substantive analysis, with a view to providing specific and concise raw information that our readers can then use in their daily work. These new developments on PIL may include information on new laws, rules and regulations; new judicial and arbitral decisions; new treaties and conventions; new scholarly work; new conferences; proposed new pieces of legislation; and the like.

Within the realm of International Relations (IR) and research on Global Governance, one observation is clear. The growth of non-state actors in all the various types have grown exponentially to help states govern and lead their publics. Facebook should be considered as such, a non-state actor (transnational organization) which wields significant influence and power globally.

Si tratta del "report" italiano per la sessione in materia di "Optional choice-of-court agreements" a XX Congresso internazionale della Accademia internazionale di diritto comparato, tenutosi a Fukuoka (Giappone) nel luglio 2018. Nel report si analizza la disciplina delle clausole opzionali di scelta del foro alla luce della normativa e della giurisprudenza in materia, per giungere a concludere che tali clausole sono ammissibili e rispettate nel nostro ordinamento processuale.

Cassazione sulla giurisdizione per le azioni di responsabilità proposte dagli investitori contro le agenzie di rating. -2. I tratti distintivi dell'attività di rating e la loro rilevanza internazionalprivatistica. -3. L'interpretazione dell'art. 5 n. 3 del regolamento Bruxelles I nella giurisprudenza della Corte di giustizia dell'Unione europea. -4. Il ruolo della protezione della vittima nell'interpretazione dell'art. 5 n. 3 in relazione agli illeciti finanziari. -5. L'individuazione del luogo del fatto generatore del danno: il luogo in cui è stabilita l'agenzia di rating. -6. L'individuazione del luogo del danno: considerazioni generali. -7. Segue: il luogo del danno meramente patrimoniale. -8. Segue: la localizzazione del danno da rating errato: il mercato su cui il titolo viene negoziato ed acquistato. -9. La difficoltà di determinare la giurisdizione per gli illeciti che hanno ad oggetto titoli quotati su piú mercati o al di fuori di un mercato regolamentato.

"The Report presents insights which illuminates the intertwinements of European regulatory policies and global governance arrangements. By pinning down the exact nature of the interaction between these two levels, the EU’s dilemma becomes obvious: On the one hand, stronger global governance can be a chance, through which the EU can clarify its own raison d’être of increased integration to the wider world. On the other hand, the design of the European project is being challenged by more assertive global structures. This is especially the case in relation to the WTO regime, which is constraining the decisional autonomy of the EU, regarding the appropriateness of its content and its external effects. Thus, the regulation of services in the EU and the WTO are discussed in the first section of this report. Section two focuses on labour standards, which are analysed from different angles in order to clarify the functions of the WTO and the ILO, multinational companies as well as other private actors within this specific field. The final section deals with the legitimacy problematic of transnational governance.

Table of contents:

Introduction
Christian Joerges and Poul F. Kjaer

Section One: Freedom of Services

Chapter 1
The Multiple Understandings of Conflict between Trade in
Services and Labour Protection
Alexia Herwig
Chapter 2
Competing in Markets, not Rules:
The Conflict over the Single Services Market
Susanne K. Schmidt
Chapter 3
Competitiveness and Labour Protection: A Comment
Markus Krajewski
Section Two: Labour Standards
Chapter 4
WTO and ILO: Can Social Responsibility be maintained
in International Trade?
Josef Falke
Chapter 5
Reframing RECON: Perspectives on Transnationalisation and
Post-national Democracy from Labour Law
Claire Methven O’Brien
Chapter 6
Transnational Governance and Human Rights: The Obligations of
Private Actors in the Global Context
Regina Kreide
Section Three: The Legitimacy of Transnational Governance
Chapter 7
Legitimacy through Precaution in European Regulation of GMOs?
From the Standpoint of Governance as Analytical Perspective
Maria Weimer
Chapter 8
The Justice Deficit of the EU and other International Organisations
Jürgen Neyer
Chapter 9
Towards Normative Legitimacy of the World Trade Order
Alexia Herwig and Thorsten Hüller
Chapter 10
From Utopia to Apology – The Return to Inter-state Justice
in Normative IR Scholarship: Comments on Neyer and
Herwig & Hüller
Jens Steffek"

The international legal system encompasses a variety of legal norms, but the perceived increase in "fragmentation" of these norms has recently been seen as a problem for the system as a whole. Consequently, many writers have suggested forms of increased comity among international tribunals in order to combat the problems associated with fragmentation; indeed, locating harmonies among international legal regimes within a coherent international legal system appears to be the dominant trend. Yet these perspectives dismiss, or at the very least, largely overlook, the benefits of competition among international tribunals.

Fragmenting norms could provide opportunities for better norms, particularly since differing legal traditions bring differing norms to adjudication, all of which may have their relative strengths. This continual updating of law and legal dispute resolution is healthy for the law to maintain legitimacy while keeping up with social change. How popular courts weigh the need for equality, the right to a hearing, and so on might suggest a balance among principles that is the most just approach. Other tribunals may look to the decisions of more popular fora as examples of justice, and reform themselves and their image appropriately. Thus, increased competition may increase the diversity of legal norms and the legitimacy of the norms applied.

Any objection to the beneficial role of fragmentation is based on one's conception of justice and whether justice can be a democratic and competitive preference. If international tribunals are created by States in order to do justice among them, then being recognized as the most attractive forum is evidence that a particular tribunal may have a better appreciation for justice. Fragmentation may not be a problem to be solved, but rather, a sign that the international legal system needs to consider a variety of legal norms. As society's definition of justice evolves, so do many tribunals, not necessarily towards a top-down, constitutionalized, hierarchical system overseeing a coherent, unitary international legal order, or for that matter towards a network of friendly, lending, and borrowing professionals. Instead, they may affirm a bottom-up, vigorous system where different legal actors compete for the best realization of justice.

There exists no `international bar' regulating the practice of forensic advocacy before international courts and tribunals. Before arbitral tribunals such as the International Centre for Settlement of Investment Disputes and the Iran-US Claims Tribunal, legal argumentation is almost entirely left to the discretion of parties. There has been concern amongst participants in the arbitral process regarding ethical issues that have arisen concerning the conduct of representatives. Through analysis of ICSID procedural rules and jurisprudence, with supplementary reference to other investment arbitral tribunals as well as the Iran-US Claims Tribunal, it is argued that there is a need for procedural reform in order to introduce common and strict ethical standards of conduct for counsel appearing before such tribunals. In the absence of prescribed admission requirements or deontological rules, it is further submitted that ICSID tribunals have an inherent power to protect the integrity of their own proceedings by sanctioning representatives for misconduct. It is recommended that, as part of the progressive professionalisation of the international judicial system, the principles of integrity of arbitral proceedings, fair trial and equality of arms require that all litigants' representatives be subjected to uniform standards of conduct.

1. Obiettivi e novità della riforma francese del 2011. -SEZIONE I. LA CONVENZIONE D'ARBITRATO. -2. La nuova convenzione d'arbitrato. -2.1. Clausola compromissoria e compromesso. -2.2. La forma. -2.3. Le clauses blanches. -2.4. I requisiti del compromesso. -2.5. L'autonomia della convenzione d'arbitrato. -2.6. Effetto negativo della compétence-compétence. -2.7. Convenzione d'arbitrato e misure istruttorie e cautelari ante causam. -SEZIONE II. IL TRIBUNALE ARBITRALE. -3. La figura del juge d'appui. -4. Il tribunale arbitrale. -4.1. La costituzione: aspetti generali. -4.2. Il completamento del collegio. -4.3. L'arbitrato con pluralità di parti. -4.4. Le difficoltà nella costituzione del tribunale arbitrale. -4.5. Momento di costituzione del tribunale arbitrale e révelation. -4.6. La sostituzione degli arbitri. -4.7. Il procedimento dinanzi al juge d'appui. -4.8. L'inderogabilità della disciplina. -SEZIONE III. IL PROCEDIMENTO ARBITRALE. -5. Il procedimento arbitrale. -5.1. L'instaurazione. -5.2. La durata. -5.3. Le regole. -5.4. Effetto positivo della compétence-compétence. -5.5. Il principio dell'estoppel. -5.6. L'istruzione probatoria. -5.7. Il potere cautelare degli arbitri. -5.8. Le prove detenute da terzi. -5.9. Giudizio di verificazione e querela di falso. -5.10. L'interruzione e la sospensione. -5.11. La fine del procedimento.

The paper introduces the “Dialogue between the Orthodox and the Protestant”, an until now neglected literary work composed in the early 20th-century Eritrea, which provides a detailed account of the traditional dispute resolution and its application to an interconfessional debate. This composition is unique not only due to the fact that it seems to be the very first larger text within the Eritrean and Ethiopian Orthodox traditions deliberately responding to the spreading Protestantism, but also due to the fact that it bears witness of an intriguing mode of entanglement between the Christian theology and the traditional litigation in the Horn of Africa. Moreover, the “Dialogue between the Orthodox and the Protestant” sheds light on some important aspects of the legal, political, religious and cultural history of Eritrea. The given paper offers a preliminary analysis of the text and its manuscript tradition.

This article presents a detailed case-study of trials between an English ship captain and an Egyptian supercargo (sopracarico) who opposed each other in the courts of the Governor of Livorno and of the Pisan Sea Consuls in 1739-1740. It deals with the thorny question of levels of trust involved in cross-religious trade, trying to understand how a simple disagreement over the unloading of cargo, that is a common and relatively benign freight dispute, could end up qualified as fraud, or dolus; and how this, in turn, triggered a series of accusations of other fraudulent practices, like forgery, failure to report salvaged cargo, perjury, bad faith, legal chicanery, etc. This affair shows how these different practices of fraud become entangled, designating a genus of fraud rather than a species of fraud. Moreover, it allows us to analyze several «litigious thresholds», that is the main stages between dispute, litigation and open conflict, characterized by the radicalization of both litigants' claims, a gradual increase in verbal aggressiveness and even the suggestion of physical violence.

O acórdão Cartesio e a liberdade de estabelecimento das sociedades 215 RESUMO: Em 16.12.2008, o Tribunal de Justiça da União Europeia proferiu o acórdão Cartesio, relativo à liberdade de estabelecimento das sociedades. Neste estudo, a decisão é apresentada e analisada, defendendo-se que um exame cuidado do âmbito teleológico das normas comunitárias que consagram a liberdade de estabelecimento, bem como das relevantes normas nacionais de direito das sociedades, constituiria a mais correcta abordagem para a resolução do caso, abandonando-se assim a tese da criação nacional das sociedades. Não obstante, na perspectiva das sociedades portuguesas, certos ditos do Tribunal parecem garantir a sua plena mobilidade no espaço europeu.

The determination of the applicable law may never exceed the limits of the contract entered into by the parties and their expectations and legal certainty. This criterion is to be understood as the main dogma. The global financial and economic crisis only confirmed that commercial practices became extremely brutal, and the current global situation confirms that any arbitral or choice-of-forum clause, i.e., an authorisation of the tribunal to choose any law or rules or even principles of law, does not indicate a greater willingness of the parties to settle potential disputes in a fair manner. The tribunals have to determine the applicable law as a legal system of a particular country using standard conflict-of-laws methods and conflict-of-laws rules as prescribed by applicable lex arbitri or (if authorised by lex arbitri and/or by the parties themselves) to first determine the relevant choice-of-law methods and rules. They have to reflect on the contract as well as potentially applicable lex arbitri if these contain binding instruction for conflict-of-laws resolution. In respect to the applicability of the Rome I Regulation in arbitration, the author‘s opinion is that the tribunals must apply it at once if they have to apply particular conflict-of- laws rules (as adapted by a number of national lex arbitri rules) and such conflict-of-laws rules are those of a country bound by the Regulation. The refusal to apply it would endanger certainty and foreseeability. Nevertheless, the arbitrators might do so, and they often have to find a more rational and commercially practical approach in interpreting the Regulation. In addition, they often determine the limits of the parties‘ autonomy, which in EC law are in fact (de iure) rather broad. And this occurs even though EU administrative structures usually attempt to subordinate arbitration conducted in EU countries under the ECJ (EU Tribunal) adjudicated standards, which are (in contrast to the Rome I Regulation itself) not binding for the arbitrators if determining substantial law issues.

The legal system has a crucial preventive and corrective role to play regarding environmental damage. To this end, together with measures adopted in other legal areas such as administrative, criminal or civil law, both public and private international law are also a source of solutions for dealing with environmental liability in cases that go beyond purely domestic matters. This entry is written from the private international law perspective and primarily focuses on how the jurisdiction and the law applicable to environmental damage cases are determined in the European context. After briefly presenting the jurisdictional issues (art 5(3) of the Brussels Convention (Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters [1986] OJ C 298/1, (consolidated version) [1998] OJ C 27/1); the Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12/1); and art 7(2) Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1), it covers the most relevant features of national conflict of law rules existing in this sector before the application of the Rome II Regulation (Regulation (EC) No 864/2007 of the European Parliament an of the

Parte seconda Il lodo, le impugnazioni e la disciplina dell'arbitrato internazionale (*) SEZIONE IV. IL LODO ARBITRALE. -6. Il lodo arbitrale. -6.1. Aspetti generali. -6.2. Diritto applicabile e amiable composition. -6.3. Deliberazione e contenuto. -6.4. L'obbligo di motivazione. -6.5. La nullità. -6.6. L'autorità del lodo. -6.7. Interpretazione, correzione e completamento del lodo. -7. L'exequatur. -SEZIONE V. I MEZZI DI IMPUGNAZIONE. -8. L'impugnazione del lodo. -8.1. Aspetti generali della riforma. -8.2. L'appello. -8.3. Il ricorso in annullamento. -8.4. Disposizioni comuni. -9. L'impugnazione dell'ordinanza sull'exequatur. -10. I mezzi straordinari di impugnazione. -SEZIONE VI. L'ARBITRATO INTERNAZIONALE. -11. Aspetti generali della riforma. -12. Definizione. -13. Il juge d'appui competente. -14. Il rinvio alle norme di arbitrato interno. -SEZIONE VII. LA CONVENZIONE D'ARBITRATO, IL PROCEDIMENTO E IL LODO. -15. La convenzione d'arbitrato. -16. Il procedimento arbitrale. -16.1. Le regole di procedura. -16.2. Il principio del contraddittorio. -17. Il lodo. -17.1. Il diritto applicabile al merito della controversia arbitrale. -17.2. Il principio maggioritario. SEZIONE VIII. Il riconoscimento e l'esecuzione delle sentenze arbitrali rese all'estero o in materia di arbitrato internazionale. -18. Requisiti per il riconoscimento e l'esecuzione. -18.1. L'ordine pubblico internazionale. -18.2. Requisiti formali. -19. La procedura di exequatur. -SEZIONE IX. I MEZZI DI IMPUGNAZIONE. -20. Aspetti generali. -21. Lodi arbitrali internazionali resi in Francia. -21.1. Il ricorso in annullamento. 21.2. La rinuncia all'impugnazione. -21.3. L'impugnazione dell'ordinanza sull'exequatur. -22. Lodi arbitrali resi all'estero. -23. Disposizioni comuni: l'assenza dell'effetto sospensivo -24. Conclusioni. SEZIONE IV IL LODO ARBITRALE 6. Il lodo arbitrale. 6.1. Aspetti generali.

International treaties therefore have priority over provisions of domestic origin (domestic lex arbitri). This mainly concerns two conventions, namely the New York Convention (1958) and the European Convention on International Commercial Arbitration (1961). In the field of international arbitration, specifically the recognition and enforcement of foreign arbitral awards, these two conventions were historically preceded by two international treaty acts. If it is possible to apply both the provisions of bilateral interstate treaties (as mentioned above, primarily the legal assistance treaties) and the provisions of multilateral conventions, then the bilateral treaties are usually prioritized as a quasi lex specialis. Mainly the reflection the bilateral treaties (legal assistance treaties), but often also the reflection of the European Convention on International Commercial Arbitration (1961) will often be omitted.

This dissertation studies the contemporary issues regarding the contracts signed by Tour Operators with their international partners in matters of private international law. The first part discusses the general conditions under which these contracts as signed (how the tourism industry works, which are the fundamental problematics on international contracts etc.). Next there is an analytical reference to major contractual provisions such as jurisdiction and choice of law, continuing with more specific terms such as the “overbooking” provision” and “allotment” agreements. Then a notion has been made to third party rights deriving from these contracts. Last but not least, in the final part a comparison is attempted between the all above mentioned with the contractual practices of the Tour Operators and the problems they face through a “Dodecanese Case Study”.

This literature review attempts to interface counselling with alternative legal practice. The authors proceed by contrasting the adversarial nature of litigation with the conciliatory nature of alternative dispute resolution (ADR) with a view to encouraging
seekers of dispute resolution to opt for ADR in lieu of litigation. The paper discusses the Ubuntu world view in conflict resolution in relation to ADR practices. While not presenting ADR as a replacement for litigation nor proscribing litigation in itself, this paper prescribes the use of ADR to arrive at settlements that are more satisfactory and longer lasting. The paper finally shows how counsellors and guidance professionals may be involved in ADR processes to effectively give succour to conflicting parties.

Successfully obtaining a judgment or arbitral award may not be the final step in asserting a claim. Extra enforcement measures may be required when the losing party refuses to abide by the terms of a ruling. In international commerce, rulings must often be enforced in a jurisdiction other than the one where it was made. In this case, the ruling will have to be recognized by the competent authority of the country where enforcement is sought. Obtaining recognition of a foreign ruling in a country that is part of the Gulf Cooperation Council [the GCC] can be laborious. Despite the ambitious strategies of the GCC countries regarding the recognition and enforcement of foreign arbitral awards, their local courts still have many reservations about foreign rulings. This article provides an overview of existing regulations pertaining to foreign rulings in the six GCC countries (Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates), and offers suggestions on strategies to deal with the challenges posed by these regimes.