The principle of res judicata recognizes the autonomy of the individual and their need to agree on the methods and process of resolving the conflict. So, while coming up before an arbitrational tribunal, the parties to the process must have evidence and determine the process to be followed and the information submitted within time. It is this data that the tribunal will use to resolve the case. Indeed, Article 4 of the Chinese Arbitration Law denotes, “while settling a dispute through the use of an arbitration process, the parties must agree to the process out of the free will. Without such an agreement, the arbitration tribunal shall refuse to hear the application[5]”. From this rule, what emerges is that the Chinese government recognizes the need for the parties to an arbitration process to agree on the provisions to follow while solving their cases. Even so, article 9 of the Chinese Laws on Arbitration recognizes individuals’ autonomy and asserts that “an arbitral award is final unless the parties to the dispute manage to agree on an alternative solution.[6]” This is a law that was reinforced in Huawei v Samsung where the Chinese Court rules that the enforcement of the arbitral awards is final, but the parties to the conflict can agree with themselves on finding an alternative solution to the problem.

It is based on this fact, that the Shenzhen International Arbitration Court (SCIA) came up with the guidelines that can help in the provision of the re arbitration services. The concept of re arbitration refers to a review of an arbitral award, and the aim is to ensure that it is reasonable, fair, and the process done per the law. Article 53 of the SCIA provides information on the methods and the conditionality required for the process of re arbitration to occur. Section 53 (1) of the SCIA denotes that “upon examination of the evidence adduced before the court, and it is convinced that the arbitration process was not conducted per the country’s legal provisions, then, the process of re arbitration may be ordered.[7]” From this legal provision, what emerges is that the process of re arbitration is acceptable upon the fulfillment of certain conditionalities. An arbitral award may be reviewed when the process is biased and flawed and contradicts the country’s laws and principles.

For example, the Chinese People Republic Court refused to enforce an award in Janful Limited v. Nanjing Skytech (2010) because the process was fraudulent, and the arbitrators refused to recognize the rights of the parties to the agreement[8]. In a bid to provide more information on the process of re arbitration and circumstances where it can be refused, Article 5 of the New York Convention identifies the conditions where an arbitral award can be reviewed. It can be re-examined in circumstances where the agreement entered upon by the parties is invalid as per the provisions of the law. Article 5 (c, d, and e) identifies the notion of procedural fraud as one of the conditions that can warrant the courts to order for the re arbitration process. Therefore, it is possible to assert that the finality of the arbitral awards is not absolute, and the rulings of the arbitration commissions can be reviewed based on certain conditionalities.

In this regard, this dissertation analyses the concept of re arbitration and whether it should be allowed. This is considering the primary characteristics of arbitration. The fundamental feature of arbitration is the finality of the award issued by the commission responsible for settling the dispute. Article 9 of the China Laws of Arbitration recognizes the finality of an award issued by the commission and discourages its appeal. Moreover, it is possible to review the award if serious legal flaws occurred during the arbitration process. In this regard, the primary position of this dissertation is that re arbitration is essential and should be allowed because it would help to correct an erroneous award that has been issued by an arbitration panel that broke the law and did not consider the rights of the parties to a dispute.

Chapter 2

Overview

The Shenzhen International Arbitration Court (SCIA) has in place provisions that recognize the need for re arbitration. The process of re arbitration involves starting a new arbitration process after an award has been made. In this regard, Article 24 (8) of the Shenzhen International Arbitration Court rules denotes that, “a party to the arbitration process can object to the decision that has been made by an emergency administrator, and apply for its revocation, suspension, and modification within three days after the decision has been made[9]”. This is a clause that allows for the re arbitration process, in circumstances where the parties to the arbitration agreement do not agree on the rulings made by an emergency arbitrator. The Shenzhen International Arbitration Court appoints an emergency arbitrator in circumstances where there is an agency for resolving the conflict. In this case, in situations where the outcome of the process is not satisfactory, the parties to the agreement can apply for re arbitration. Still, Article 53 (1) of the SCIA provides instances where the process of re arbitration may be allowed. The section denotes that, “the SCIA can allow the process of re arbitration in circumstances where a competent court has recommended the process to be initiated under the laws.”[10]. From this requirement, what emerges is that the party to the arbitration process can challenge the award issued by the arbitration panel to a competent court, and the process can be examined to recommend re arbitration to occur.

But, the condition is that the same arbitration panel that resolved the case should be re-engaged. Moreover, Article 53 (1), denotes that an arbitrator can disqualify himself or be removed in circumstances where they have engaged in unlawful activity. Article 53 of the SCIA Guidelines quotes article 32 of the guidelines to remove an arbitrator from the arbitration process[11]. These guidelines include instances where an arbitrator has a personal interest in the case, has voluntarily resigned, or is unable to perform the arbitration duties according to established rules and guidelines. In such a situation, the process of re arbitration may commence with a new arbitrator on the bench. In this regard, this section analyzes the process of re arbitration and circumstances where it may occur. It addresses issues such as the finality of the arbitral awards, and the limited judicial review processes as some of the conditions for the justification of the re arbitration process. Other issues addressed in this section are the re arbitration process and the three tests that can help to justify it.

The Finality of an Arbitral Award is not Absolute

The Peoples Republic Arbitration Law of China has legislation in place that does not advocate for the re arbitration process. This is a provision in article 9 of the arbitration law stating, “The award issued in the arbitration shall be final. So, if any party petitions an arbitration commission to challenge the award, it shall not be accepted.”[12]. From this law, what emerges is that Chinese laws and regulations are against the re arbitration process. Furthermore, the process of re arbitration was denounced in the case, Oxford Health Plans v Sutter 569 U.S. 564, where the court denoted that “it is unacceptable to review an arbitral award, and especially in instances where the arbitrators made a mistake while issuing the judgment.”[13]. Various challenges have met the inability to appeal an arbitration award, and one of them is in the instances where the award issued was wrong and illegal.

The integration of China into the global trade made it establish the SCIA, which looked at the concept of the finality of an arbitral, and whether it should be absolute. Upon examining the norms at the international system, the SCIA concluded that the finality of an arbitral award should not be absolute. The SCIA noted that a material mistake could be made while providing an arbitral award. In this regard, Article 53 (1) of the SCIA Guidelines was established to provide information on how the re arbitration process should occur. The process should occur if “a competent court recommends a review of the arbitral award per the arbitration agreement’s laws and regulations.[14]” This means that the re arbitration process can only be allowed if it does not contravene the existing laws and jurisdictions.

For instance, Section 58 of the 1996 U.K. Arbitration Act allows for the process of re arbitration. The law denotes that, “unless the parties to an arbitration agreement concur, an arbitral award is final.” This is a clause that allows for the re arbitration process. The reason is that it gives the parties to an arbitration agreement an opportunity to come up with rules that will determine how they accept the results of an arbitration process. If they agree to seek an appellate review, then, the process of re arbitration may commence. Other similar legal provisions that allow the re arbitration process to ensure are the 1986 Article 1050 of the Dutch Code of Civil Procedure, and Arbitration Ordinance Decree-Law 29/96 M of Hong Kong[15]. According to these legal provisions, one can appeal an arbitral award if they agreed to seek an appellate review during the arbitration process. Indeed, the recognition of the role of the parties to an arbitration dispute deciding on the implementation of an arbitral award is captured in the Huawei v Samsung Case, where the SCIA denoted that the “parties to the arbitration dispute can agree on the implementation of the award.” [16]This ruling is an indication that the international norms and trends on the re arbitration process can only commence if both parties to the re arbitration process consent to it. So, it is possible to assert that the finality of an arbitral award cannot be deemed as an absolute. The arbitral award can be challenged through an appellate review.

Limited Judicial Review (Court Intervention)

There is a limited judicial review on the arbitral awards issued by the arbitrators, during conflict resolution. This is basically because of the existence of legal provisions that prevent the revocation of an arbitral award. For instance, article 9 of the Chinese Arbitration Law prevents the revision of an arbitral award. According to this article, it is unacceptable for the courts to revoke an arbitral award[17]. In this regard, China has a limited judicial review precedent, that highlights instances where the courts intervened when it came to reversing an award issued by the arbitrators.

Even so, the concept of res judicata, whereby parties to a conflict will only have one chance for a resolution of their affairs, can be exempted when several conditions are present. For instance, parties to an arbitration procedure must provide all the material details and information needed for resolving the case. In circumstances where the information is not provided, the courts may order for a review of the arbitral award. Still, in situations where the arbitral procedure was influenced by fraud and dishonesty, and there is an emergence of new material evidenced. The courts can order for the re arbitration[18]. This is a concept that is covered in various international norms, rules, and legislation.

The UNCITRAL Model Law denotes that an arbitral award can be set aside when “there are instances of fraud, open bias, and misrepresentation of facts.[19]” Furthermore, section § 1059 of the German Code of Civil Procedure (GCCP) allows for an arbitral award to be set aside only if there is a procedural fraud[20]. The misrepresentation of law and facts by the arbitrators cannot constitute a ground for the setting aside of an arbitral award. The judges, in the case of Commonwealth Coatings Corp. v. Continental Casualty Co (1968) denoted that, “when it comes to matters of arbitration, the arbitral award is always final, and this is irrespective of the errors that the arbitrators made, but, an exemption to this fact is that in circumstances where there is procedural fraud, and misrepresentation of facts, one can seek for an appellate review.[21]” Even while seeking an appellate review, the judges thought that it is the same arbitrators to hear the case. This is a fact that is supported by Section 10a of the Federal Arbitration Act, and Article 53 of the SCIA Guidelines[22].

The requirements that the same arbitrators should preside over a review of an arbitral award frustrate the judicial review’s doctrine. It calls for independent and different judicial officers to review a judgment or a policy and ascertain its appropriateness[23]. It is based on this fact, that there is a limited judicial review for issues about an arbitral reward. In this regard, there is a need to encourage the process of re arbitration, as it would act as an alternative to a judicial review process. International and national laws, norms, and regulations do not advocate for a judicial review on issues about arbitration and the issuance of an arbitral award.

The Re Arbitration Process

The International Law Framework appreciates the Finality of an Arbitral Award and Conditional Judicial Intervention.

The finality of arbitral awards and conditional review of an arbitration decision is one of the characteristics of the international legal frameworks. For instance, in TCL Air Conditioner (Zhongshan) Co v the Judges of Australia Federal Court, the judicial[24] authorities denoted that an arbitral award is final, and the courts have the mandate of enforcing it. The reason behind this judgment is that when the parties to an arbitration process agree to use an arbitrator, they bind themselves to the court’s decision. It cannot be appealed unless certain conditions are met. This is an argument that gets the support of article 35 of the UNCITRAL Model Law, which asserts that “an arbitral award should be considered as final and binding.”[25]. Still, the UNCITRAL provides conditionality for the existence of the re arbitration process. The conditions are spelled out in article 36 of the UNCITRAL Model Law, which states that the refusal to implement an arbitral award should be based on whether it violates the public policy of a given state[26]. Therefore, it is possible to assert that the notion of finality of an arbitrary award and the conditionality for its appeal is an essential norm and regulation at the international system, that regulates the process of arbitration and re arbitration.

China is a Member of the New York Convention on the Recognition of Enforcement of Foreign Arbitral Award

Article 1 (3) of the New York Convention asserts that “states that ratify the treaty will act under the principle of reciprocity, where they will enforce an arbitral award issued by a foreign court, in circumstances where the parties are in its territory.” Still, Article 1 (3) indicates that the condition for not enforcing the arbitral award is where enforcement will violate the state’s laws. China is a member of this convention, and therefore, it has the responsibility of enforcing an arbitral award that recognizes the principle of finality. Because China is a member of the international trade communities and organizations such as the World Trade Organization, it has the responsibility to pursue the principle of reciprocity when it comes to implementing the arbitral awards. It is based on this fact, that Article 9 of the Chinese Laws on Arbitration recognizes the principle of finality of an arbitral award.[27]

One of the leading cases that involved the Chinese enforcement of a foreign arbitral award was Siemens International Co v Shanghai Golden Landmark Co[28], where the courts denoted that in as much as the companies were registered in China, and the location of the operation was in the Country, they were a foreign company because their ownership was 100% foreign. In this regard, China had the responsibility of enforcing an international arbitral award as per the provision of Article 1 (3) of the New York Convention. Furthermore, the court ruled that the arbitral award did not violate the Chinese public policy. Hence, it was enforceable in the country.

Shenzhen International Arbitration Court Selective Re Arbitration Procedure Guide

Article 53 of the SCIA recognizes the need to engage in a re arbitration process in China. For instance, Article 53 (1) denotes that “in a circumstance where the courts have nullified an arbitral award per the law, then, the process of re arbitration should occur.” From this guideline, what emerges is that there is a conditionality for the re arbitration process to occur. One of the conditionality is that the law should be followed. Article 48 (1) denotes that, “the court of arbitration should issue out an arbitral award per the law, and observe the principles of reasonableness and fairness.” In this regard, it is possible to assert that the SCIA follows the international laws and principles that help to guide how the process of arbitration and re arbitration occurs.

The Three Tests for the Re Arbitration Process

Non-compliance with Arbitration Agreement

There are three primary tests that the court would conduct while deciding whether to recommend for the re arbitration process. One of them is to determine if there is a non-compliance with the arbitration agreement. Indeed, determining an arbitration agreement is one of the guidelines that is established by the SCIA when solving a trade dispute. Article 48 (2) denotes that, “in circumstances where the parties to the conflict agree on the law to use, then, the contents of their agreements shall be used[29]”. This provision is a clear indication that one of the tests that can be used to determine the process of re arbitration is to understand the nature of an agreement and determine whether there is compliance or not. This provision was identified in Future E.N.E. v. Shenzhen Cereals (2006)[30], where the courts denoted that the violation of an arbitration agreement is a perfect ground for the provision of an arbitral award, however, after the identification of the non-compliance with the arbitration agreement, the court will seek to understand the merits of an award and determine if it was done per the law. This is an issue that is supported by the guidelines established in Article 48 (1) of the SCIA, which authorizes the re arbitration process in circumstances where the law was breached.

In this regard, while seeking to order a re arbitration process, the courts will determine whether there was an existence of a procedural fraud, but they will ignore the subject matter of the arbitration. Article V (1a, and 2a) of the New York Convention identifies the presence of procedural fraud as a condition that the courts should determine when issuing an injunction against the enforcement of an arbitral award[31]. For instance, article V (1a) denotes that an award may not be enforced in circumstances where there is a procedural fraud, which is illegal, and against the provisions of the laws of the given state. One of the cases that recognize the need for an arbitral award to be consistent with the state laws is E.D. & F Man v National Sugar, where the court refused to enforce an arbitral award because it was inconsistent with the Chinese laws and legal procedures. Still, the 1997 case of the U.S.A. Production et al. v Women Travel, illustrates a situation where the Chinese government refused to enforce an arbitral award because it was inconsistent with its laws, and public policies[32]. Therefore, in circumstances where the arbitration process comprises procedural fraud, which is against the guidelines set up by the SCIA and the Chinese Arbitration laws, then the process may qualify for re arbitration.

Parties to an Agreement are Autonomous

Still, as per the provisions of the UNCITRAL Arbitration Rules, the parties to an arbitration agreement are autonomous. They have the power and freedom to decide on the arbitration process and the methods of its resolution. Article 3 of the SCIA Rules and Regulations identifies the scope of the applications of the arbitration and re arbitration procedures. For instance, article 3 (1) denotes that “the parties to an arbitration agreement may agree to submit their dispute to the SCIA, and its rules would bound them.”[33]. This is an indication of the parties’ autonomy to decide how the resolution should be solved and the process therein. Still, in Huawei v Samsung, the court denoted that the parties to an arbitration agreement are autonomous, and they can decide on the rules of the agreement, and this includes the enforcing of an arbitral award. So, in circumstances where the parties to an arbitration process agree on the rules and call for re arbitration, the court can consider granting it.

Res Judicata Rule

The notion of the res judicata always governs the decision of the arbitration courts. This is a principle that the international court of justice recognizes, which advocates for the hearing and determination of a course in the first instance. The process should be subjected to international laws and norms. Moreover, while allowing an appeal to the decision, the courts should only consider the facts of the law and ensure that it is not costly and lengthy. Otherwise, this will defeat the intentions of an arbitration process.

Conclusion

The courts are always reluctant to encourage the process of re arbitration. One of the primary reasons is because of the doctrine of the finality of an arbitral award. However, this finality is not absolute. This is better depicted in article 5 of the New York Convention on the Enforcement of Arbitral Awards. The exemptions to the doctrine of the finality of an arbitral award are when there is a presence of procedural fraud, and the process and awards contradict the existing laws and public policies of the enforcing state. The SCIA Rules and Guidelines recognize these exemptions under article 53. In this regard, it is possible to conclude that the re arbitration process ca only occur under some conditionality that is spelled out in various international and national laws and regulations.

Chapter 3

Introduction

The New York Convention on Arbitration outlines conditions in which the process of re arbitration may occur. According to Article V of the New York Convention, the process may occur if the agreement violated legal provisions and the constitution. Still, re arbitration is allowed if there were procedural fraud, and the award was beyond the scope of the arbitration tribunal. Also, article V (a and b) of the New York Convention allows the courts not to enforce an arbitral award if it contravenes the state’s laws and is against the public policy of the enforcing country[34]. From this convention, it is possible to assert that the process of re arbitration is beneficial because it aims at correcting the legal errors made by the arbitral tribunal. This will, in turn, protect the interests and rights of the parties to the process. Moreover, international and national arbitration laws and regulations discourage the review of the arbitral awards.

This is better seen in Article 9 of the Chinese Laws of Arbitration, Article 35 of the UNCITRAL Model Laws, and F.A.A. 9 U.S. Code § 9 and 10, which only allow the commencement of re arbitration based on certain conditionality. They seek to promote the primary element of arbitration, which is the finality of an arbitral award. The reason for the doctrine of the finality of an arbitral award is because the process of re arbitration may increase the costs and time of resolving the case, and this may negatively impact on trade[35]. Furthermore, the primary intention of arbitration is to find a solution to the business problem in a timely and cost-effective manner. Therefore, this section identifies the advantages and disadvantages of the re arbitration process.

Advantages of the Re Arbitration Process

For purposes of providing concise and detailed advantages of the re arbitration process, there is a need to develop a debate on the finality of an award issued by an arbitration tribunal, against the fairness of the process[36]. The reason for taking this approach is because the best outcome of an arbitration process arrives when a balance between fairness and the notion of finality of the arbitral awards are reached[37]. In case the balance is not available, then there is a need for a re arbitration process to commence[38]. In this regard, the process of re arbitration seeks to provide a balance between fairness and the finality of an award issued. As a result, it makes people have confidence in the arbitral proceedings. The reason is because of the ability of the courts to set aside any flawed judgment. For example, when an arbitral commission carries out a hearing that is full of a flawed process, such as the inability to notify the parties to the process of its commencement, then the courts can annul the arbitral award. Such a process is commendable, and it would make the parties involved in the dispute to have confidence with the arbitration procedures and bring their cases to these commissions for resolving. An example of a case in which the court refused to enforce an arbitral award is LM Holdings et al. v. Jiashijie Group et al. (2009). In this case, the Peoples Republic Court in China denoted that, “the failure to notify the participants to the arbitration process was a sufficient ground to nullify the award, and order for the re arbitration”[39]. This is a ruling that has the capability of creating confidence in the re arbitration process. The reason is that the parties to the process will have an awareness that they will have an opportunity to review the rulings of the arbitral commission, and ascertain their fairness, and ensure the existence of any flaws in procedural fairness. Indeed, from the rulings of this case, what emerges is that the doctrine of arbitral finality is not absolute. This is because the arbitration panel realized the need to review the process used to solve the cases and determine whether they are consistent with the law. Jung Won Jun asserts that insisting on the finality of an arbitral award while resolving cases is unacceptable, and can de-motivate the parties to the dispute not to seek arbitration services as a way of solving their problem[40]. They would rather rely on the process of litigation to solve the disputes that occur amongst them[41]. In this regard, when an arbitral award is not final, then, a third party will have an opportunity to review the justifications of its issuance. The possibility of reviewing an arbitral award is attractive to the parties of the arbitration proceedings, and this would make them have confidence in the process[42]. It is based on this fact that article 53 of the SCIA came into being, and the intention was to provide a justification for the review of an arbitral award, in circumstances where the laws were not followed, and procedural errors were present.

An arbitral award that is final has the possibility of frustrating the interests of a party that holds less power, and this is because of the belief that a review of the decision of the arbitration committee would result in the notion of fairness, due to the massive resources of the dominant stakeholders[43]. In a contractual relationship, there are always two powers. One has an enormous financial advantage over the other party. The re arbitration process will help to balance the economic power and interests of the parties concerned[44]. It is a fact that the party with a higher negotiating power will always try to impose its conditions on an arbitration panel. Still, the possibility of a review of an arbitral award would act as a determent for the stronger negotiating power to accept the judgments. In this manner, there would be increased confidence in the arbitration process. Belgium and France are the two countries that have managed to remove the doctrine of an arbitral finality and allowed a review of the awards issued by the arbitration panels[45]. As a result, the two countries have increased the number of cases that are solved through the use of the process of arbitration. For example, many arbitration institutions prefer to have their seats in France, and these include the international chamber of commerce (ICC). Furthermore, in 2018, there were about 842 new arbitration cases in the country, and 9% of these cases relied on the use of French laws to solve their disputes[46]. This is an indication that there was confidence with the French arbitral laws, and the reason is that it allowed a review against an arbitral award that was erroneously issued.

Another advantage of re arbitration process is that it recognizes the issuance of foreign awards. This is an aspect that is better captured in the Article 1 of the New York Convention that asserts, “states will have the responsibility of enforcing an arbitral award, even if they have not been awarded by their domestic courts[47].” The incentive given to states for enforcing the arbitral awards is that they should not contravene public policy and laws of the country under consideration. The recognition and enforcement of an arbitral award by a foreign court are beneficial to the parties of the dispute because it would save time and resources needed to achieve justice.

Also, the re arbitration process may promote the development of judicial precedents. This specifically applies to areas where arbitration disputes are constantly solved[48]. For example, the United Kingdom is one of the countries where the process of arbitration constantly takes place. In this regard, the UK Supreme Court did set a precedent in the case of IPCO (Nigeria) Ltd v Nigeria National Petroleum Corp, when it ruled that, “the appeal court did not have powers to impose conditions in circumstances where the review of the arbitral award meets the conditions established under Article V of the New York Convention[49]”. This was a ruling that established a legal precedent, whereby the courts have the mandate to order for a re arbitration process, in circumstances where one of the parties proves the existence of the conditions established in Article V of the New York Convention[50]. Indeed, the ruling, in this case, was a subject of many commentaries and publications, and this is a primary characteristic of a precedent-setting case. The publication of these rulings is beneficial to the legal fraternity because it leads to the development of the law. The development of such legal provisions is beneficial to the public because it would result in the effective resolution of a conflict. Furthermore, it helps in enhancing legal knowledge and awareness.

Another advantage of the re arbitration process is its ability to correct what is called information asymmetry. This may occur between the parties to the arbitration process. Take, for instance, the consumer arbitration process. The EU Council Directive 93/13 that was issued out in 1993, prohibits the introduction of unfair terms within the consumer contracts. Indeed, the notion of information asymmetry may occur in the relationship between the consumers and an organization. Thus, the process of re arbitration can help to correct such a problem, by availing as much information as possible to the consumers. It is unfair for consumers to make decisions based on limited information. When they enter in such contractual obligations, the chances are high that they may not get value for the products they want to use. Therefore, with the possibility of a re arbitration process to occur, the producers or manufacturers will ensure they provide detailed information that can help customers to make well-informed decisions. Through the process of re arbitration, the courts would manage to protect the interests of consumers[51]. Still, a review of an arbitral award may require an arbitrator to come up with detailed information, which was a motivation behind the issuance of the ruling. This detailed information may be written down, and justify the award that has been issued. This would enable the parties to the arbitration process to know the reasoning behind the ruling and can increase the rates of satisfaction towards the arbitration process.

Indeed, all these advantages can only be possible in circumstances where there is a review of the arbitral awards. This means that one of the parties to the arbitration process needs to come to the court, and the judicial system will have some limited control over the arbitration process, and on the award issued out by the arbitrators. But, there is always a need for caution to be taken[52]. The reason is that too much control of the arbitration process can frustrate the elements of time and cost. That is, it can increase the amount of money needed to settle a dispute, and the time taken for the resolution to be achieved.

The Disadvantages of the Re Arbitration Process

Despite the benefits of reviewing an arbitrary award, there are some disadvantages. The parties to the re arbitration process may experience some drawbacks, and this can be reflected in the institutional level. First of all, it was not the intention of the international arbitration community to allow the process of re arbitration or the review of an arbitral award. For instance, Article 32 (2) of the UNCITRAL Arbitration Laws and Rules denotes that “the award issued by the arbitrators shall be final, and it would bind all the parties involved. Furthermore, the award should be implemented without any instances of delay[53]”. From this internal legal norm, what emerges is that the award issued by the arbitration panel was supposed to be binding and final. No room for review was to be allowed. Indeed, Article 9 of the Chinese Arbitration Laws and Rules recognizes the fact that the arbitral award was not meant to be reviewed and appealed[54]. That is why the law advocates for the finality of the decision that has been made by the arbitration panel. In this regard, the re arbitration process frustrates the original intentions for the establishment of the arbitrators. It seeks to make the process to be flexible and agile, and the results are an increased cost of resolving international trade disputes.

It is a fact that when one of the parties seeks a judicial review of an arbitral award, time and money would be involved. For instance, using the court systems to appeal for an arbitral award may cost an individual the same amount of money, compared to that of using the litigation process to solve the problem[55]. There are various costs that the parties to the arbitration process would have to pay. These include the actual costs incurred for the re arbitration process and for things such as the transcripts, written awards, the internet, and the court reporter. The person seeking a review of the arbitral award is likely to incur other costs that are associated with the re arbitration process but were not foreseeable.

For example, the parties to the re arbitration process may incur the costs of adding an attorney to articulate their interests. The use of an attorney in this process is very important because of the need to be aware of the various laws that can help convince the judges to order for the re arbitration process[56]. Also, there will be a need to pay an arbitrator for the time taken to deliberate over the issues, and to re-write the awards. Indeed, an arbitrator is always paid based on the amount of time taken to hear the case. So, they are likely to charge more when they are asked to provide a review of the already issued arbitral award. Still, it takes a lot of time to come up with a reasoned written argument on why the arbitrators chose a particular decision.

Still, it is possible to assert that seeking a review of an arbitral award is like moving the arbitration process to the traditional litigation systems. That is where there are junior and higher courts, and the decisions of these courts are controlled by their superiors. Such a scenario is unwarranted because it destroys the reason behind the development of the arbitration process, that is to provide a fast and effective way of resolving business disputes[57]. To prevent re arbitration from turning into a litigation process, the courts usually advocate for the same arbitrators to review the award. This is an aspect that is captured in Article 53 of the SCIA Guidelines and Rules, which asserts that “it is the responsibility of the same arbitrators to engage in the process of re arbitration, and review an arbitral award they issued.” From this guideline, the SCIA aimed at preventing the arbitration and the re arbitration process from being turned into litigation.

Conclusion

It is a fact that the process of arbitration has some benefits and disadvantages. Its primary benefit is the ability of the arbitral reviewing panel to correct an error that could compromise the ability of the arbitration process to effectively resolve conflict. The New York Convention, the UNCINTRAL Law of Arbitration, and the SCIA Guidelines on Arbitration contain the conditionality that must be met for the process of re arbitration to occur. The primary conditionality is to correct an error of the law and the process. Moreover, there are other benefits apart from correcting the procedural and legal errors. These include correcting the asymmetrical information and setting up of new precedents and judicial authorities. The development of new judicial authorities and precedents may occur because the courts may be forced to review an award and provide reasoned arguments for their decisions, and this may be taken by the lower courts, and other arbitration panels while reviewing their cases. Still, the review of an arbitral award is advantageous because it enhances the element of confidence in the arbitration process. The parties to this process will get encouraged and believe that there would be a chance to rectify an award that is erroneously issued. Countries such as France and Belgium experimented with the abolishment of the review of an arbitral award, and the results were a significant reduction in the number of cases that were taken for arbitration. On a negative side, the process of re arbitration frustrates the international norms and traditions that governs arbitration of cases. That is, it frustrates the doctrine of the finality of an award. Also, when the court orders a review of an arbitral award, then it increases the cost and time of settling a dispute. One of the primary reasons for the arbitration process is to settle a dispute in a timely and less costly manner. But, during the re arbitration process, the parties will have to pay the arbitrators for the time spent. Also, they will have to pay for the other expenses such as the court recorder, clerks, and other issues related to ensuring the re arbitration process moves smoothly. Nevertheless, the decision to choose a review of an arbitral award depends on the parties to the arbitration process. The court will always allow the re arbitration process to ensure, in circumstances where all the parties believe it will resolve their problems.

Chapter 4: Case Study

Introduction

The need to come up with clear laws and regulations on the process of re arbitration is an issue that the Chinese government takes seriously. This is better depicted when China came up with new rules and regulations of the process of arbitration and re arbitration. For example, as effective of the 21^st of February 2019, the parties to an arbitration agreement had the right to appeal an award. The appeal was to be heard at the Shenzhen Court of International Arbitration (SCIA). However, the right to an appeal was to occur if the parties to the arbitration process agreed on the possibility of reviewing an arbitral award. On appeal, the SCIA would issue the final award. It is possible to assert that China does not move away from the international norms and traditions that govern the arbitration process, such as the finality of an award. This is an issue that is better seen in article 51 s.8 of the 2019 SCIA Arbitration Rules and Guidelines, which denotes that “an award of arbitration is final and binding to all parties. However, the exemption is when the parties agree for a review of the judgment, and the SCIA shall determine it per the provision of article 68 of the new arbitration rules and guidelines[58]”. From this legal authority, what emerges is that China recognizes the need for a re arbitration process.

But, for this procedure to ensue, there is a need of the parties to the arbitration process to agree for a review of an arbitral award. The conditionality of an agreement as a factor that determines the review of an arbitral award is an acceptable norm and legal principle in many countries of the world. For example, the German Code of Civil Procedure (ZPO) section 1058 provides important information on circumstances where an award can be canceled. For instance, it is possible to cancel an award in circumstances where the parties to the arbitration process are in agreement that there needs to be a judicial review of the process (ZPO section 1058). Even so, legal provisions such as the Federal Arbitration Act recognizes the need for parties to the arbitration process to concur on how the solution to their problems would occur. In this regard, the new Shenzhen arbitration laws are a reflection of the international standards that regulate the issuance and review of an arbitral award. This section seeks to analyze, judge, and explore the new Shenzhen arbitration rules of China. It also provides recommendations on what the second arbitration process should look like.

The Shenzen New Arbitration Rules

The Chinese new rules on optional appellate arbitration procedures that were to take place at the SCIA came into effect on the 21^st of February 2019. This is a rule that revised article 9 of the China Arbitration Rules, that maintained the finality of an arbitral award. The guidelines begin by proving a model recommendation for an arbitral review clause, that should be in agreement between the parties to the arbitration process (see appendix 1 for the model clause on the SCIA Guidelines for an Optional Appellate Re arbitration Procedure). From this model clause, one thing that emerges is that an agreement must be present. As noted above, this is a legislation that is consistent with the provisions established by arbitration committees at the international system, and this includes the German Code of Civil Procedure (ZPO) s 1054 (2) which asserts that the “arbitration committee must respect the agreements that have been put in place by the parties to the arbitration committee, and this includes the need for a review of an arbitral award[59].” Also, the UNCITRAL Model Laws and Regulations on Arbitration has a provision that requires the parties to the process to agree on how to handle their cases. This is a provision contained in Article 18 (2), which denotes that “an arbitration panel cannot sit in a location that has not been agreed upon by the parties to the process[60]”. From this provision, what emerges is that it is an accepted international norm and practice for the arbitrators to allow the conflicting parties to choose the applicable rules and ways of solving the problem, and this includes choosing the place and location of arbitration.

On this note, Article 1 (2) of the revised SCIA Rules on Arbitration reinforces the need of the parties to an arbitration process to agree on how to solve their dispute, and whether an appellate should be allowed. The article denotes that, “the parties to an arbitration process should agree amongst themselves to submit their appeal, and thereafter, submit the details to the arbitration commission agreed upon[61]”. This is a legal provision and recognition aimed at strengthening the details contained in the model appellate clause that was contained in the revised SCIA Rules and Regulations on arbitration.

Another component of the model clause is the place of arbitration. While insisting on the place of arbitration, the revised rules require that the location should be in a jurisdiction that allows for the process of re arbitration. This requirement is in line with the international norms and rules on re arbitration, which advocates for the process not to contravene the laws and regulations of a given state. For instance, in Article III of the New York Convention on the Enforcement of arbitral awards, the regulation denotes that, “an arbitral award is enforced in a state or country in accordance to the laws and regulations of the given nation[62]”. This is an indication that in circumstances where the parties to the arbitration process choose a state where the review of an arbitral award is not present, then they will not benefit from the process of re arbitration. The importance of the location of arbitration is further depicted in the New York Convention article V (2b) that states, “the enforcement of an award shall not be possible if it is against the public policy of a given state.” Because of these facts, it is possible to assert that the process of re arbitration can only take place in a location or country whose laws and public policy do not contradict the review of arbitral awards.

Furthermore, the importance of choosing an appropriate location as a seat of arbitration is better captured in deral Supreme Court (BGH), SchiedsVZ 2017, 103, 106, which was an arbitration case settled in Germany. According to the provisions of this case, the court denoted that, “an arbitral award is not enforceable in Germany in case it contravenes the laws of the country, and would violate the German public policies[63]”. Thus, it is possible to conclude by denoting that the newly revised rule has been made per the acceptable international standards and norms regarding the review of an arbitral award. In this regard, article 68 of the SCIA Arbitration Rules denotes that, “unless the laws of a given place of arbitration prohibit a review of an arbitral award, then, in accordance to Chapter VIII of the SCIA Arbitration rules, their agreement towards seeking an appeal to the rewards issued by an arbitration panel shall prevail.” This legal provision strengthens article 9 of the Chinese Laws on Arbitration, which recognize the finality of an arbitral award, but, places some conditionality that can allow the parties to the process to appeal an award issued out by an arbitration panel.

The Effects on an Original Award

The revised rules are very categorical on the time frame of seeking a review of an arbitral award. This is an issue that is contained in article 6 of the revised SCIA rules and regulations on arbitration. For instance, article 6 (1) of the regulations denotes that “an award shall not be deemed final if the expiration of the period required to file an appeal is not met.”[64] This is an indication that there is a time frame that is required for a review of an arbitral word to be done before it is implemented. The provision of this time frame is an important element in enhancing the rights of the parties to the arbitration process. It ensures that the parties to the process have enough time to prepare and review an award, and come up with a conclusion on whether they want a review or not.

The need to follow the deadlines for the reviewing of an arbitral award is a norm in the international community and countries that have laws on arbitration. For example, article 1059 (3) of the German Civil Procedure Act advises that an award can only be appealed within a time frame of 3 months. Failure to which, the issued award will be final and binding to the concerned parties. From this legal provision, it is possible to assert that time is an important element of a re arbitration process. There is a need for the parties to the re arbitration process to act within the stipulated period, as the intention is to ensure that the process is speedy and less costly. Otherwise, failure to act within the given time would make the re arbitration process very expensive and lengthy.

Article 38 of the UNICITRAL Model Laws and Rules on Arbitration recognizes the importance of time when it comes to appealing an arbitral award. In this regard, Article 38 (1) sets a time frame of 30 days. According to this provision, “parties to an arbitration procedure can appeal for the review of an award within 30 days. Failure to appeal within the prescribed time would make the award issued as final and binding.” While comparing the time frame for an appeal between the UNICITRAL Model Law and the revised SCIA Rules of Optional Appellate appeal for an arbitral award, it is possible to assert that the time frame given by the Chinese government is short. The appeal can only be done within 15 days, failure to which, the decision of the arbitration commission and panel is final. This is a provision that is contained in Article 3 (1) of the guidelines, “the appeal should be done within five days.” Indeed, there is a problem with this short time given for the review of an arbitral award. One of the reasons is that the process of reading and understanding the arbitral awards and the reasoning behind them can be lengthy.

This specifically applies when the parties to the arbitration process are ignorant of the facts of the law. In fact, as per the international standards and norms that guide the time frame for seeking an arbitral award, the International Chamber of Commerce (ICC) Rules and Regulation on Arbitration recommend that the parties should be allowed a time frame of 30 days to read and make a decision as to whether they would want to pursue a review of the arbitral award. This is a provision contained in article 35 (1) of the ICC Rules and Regulation on arbitration which asserts that “an application for the correction of an award shall occur within a time frame of 30 days, failure to which, the award issued shall be considered final and binding[65].” In this regard, it is possible to assert that the revised SCIA Rules on Optional Appellate of an Arbitral Award should reconsider Article 3 (1) and increase the number of days required to appeal for a review of an arbitral award. The increase should be to about 30 days, as contained in article 35 (1) of the ICC Rules on Arbitral Awards Appeal and article38 (1) of the UNICITRAL Model Laws and Regulations on Arbitration.

In fact, in Article 52 (1) of the SCIA Rules and Procedures for the arbitration process, the SCIA allows for 30 days for an appeal to be made, and the correction of an award. That is in case the attribution panel made errors in its issuance. So, the decision to remove the recommended 30 days to 15 days is not understandable, and the Chinese government should consider increasing the time required to submit an appeal. The Chinese government should follow an example established by the German Civil Procedure Code s 1040 (3) ZPO, which denotes that the “parties to an arbitration process may seek to challenge an arbitral award within 30 days after the decision has been made”. From this legislation, what emerges is that the standard time and period for appealing an arbitral award is 30 days. This time is enough for the parties to read through the reasoning behind the issuance of an arbitral award, and determine whether there are breaches to the law.

On the composition of the appellate arbitral panel, Article 5 (1) of the revised appellate arbitral panel identifies its composition. The regulation denotes that, “the appellate arbitration tribunal shall comprise of three arbitrators. One of them will be the presiding arbitrator. These members should not be selected from the arbitration panel that heard the original case and came up with an award.[66]” Indeed, this is a revised provision from the one contained in article 55 of the SCIA laws and Guidelines of the Arbitration process. According to this provision, the review of the decision of an arbitration panel will be done by only a single arbitrator. This provision denotes that “unless agreed by the parties to the arbitration process, the review of an arbitral award can only be done by a single arbitrator.” Indeed, this is a situation that could compromise the quality of an award or review provided. Such a process is against the international norms and legal procedures that guide how the arbitration review panel should be constituted. In this regard, establishing three arbitrators to review the written submissions for an appeal to complain against an unjust award can increase confidence in the re arbitration process. This would increase the number of cases brought before an arbitration panel.

Still, Article 4 of the Revised SCIA Rules on Appellate Review contains the guidelines and the requirements needed to lodge a successful appeal against an arbitral award. For example, Article 4 (1) of the Rules on Appellate Review denotes that the parties to the process will have to bring the agreements that occurred between the appellants and the appellees. Other conditions include an application for the appeal and the grounds or facts that influenced one of the parties to dispute the arbitral award. Indeed, coming up with these rules is commendable because it follows the international guidelines and norms on the process of re arbitration. For instance, the German Civil Procedure Code (ZPO) allows a review of an arbitral award upon the fulfillment of certain conditionality. These include it should not be against the public policy and the German laws.

Furthermore, as a signatory to the New York Convention, Germany requires that an appellate review can only occur if there were procedural errors and fraud, that negatively affected the interests of the parties that are appealing against the review. These are provisions that are contained in Article V of the New York convention, which outlines and identifies the circumstances in which an arbitral award can be revoked, and the re arbitration process ordered. Moreover, it is Article IV of the New York Convention that is aligned with article 4 of the Revised SCIA Rules on Appellate Review, and this is because it requires the parties to the arbitration process to bring forth their agreements, the decision of an arbitration panel, and the ground upon which they are disputing the award. This information is key to coming up with the correct decision that can either uphold or eliminate the award issued by the arbitration panel.

In this regard, it is possible to assert that the effects of the changes on the original award may benefit the arbitration process. The reason is that the appellate changes advocated by the SCIA would make people have confidence in the arbitration process. Still, through these changes, the re arbitration process can be fair and correct an award issued under a procedure that is unfair and erroneous. Furthermore, the new changes are aligned to the acceptable international standards and traditions that govern the process of re arbitration. This includes the guidelines established by the New York Convention, the ICC Rules of Arbitration, and the UNICITRAL Model Laws and Guidelines on Arbitration.

What the Second Arbitration Should Look Like

The second arbitration process should allow the appeal of an award that has been issued erroneously. Such an appeal should occur within 30 days, as recommended by the international laws and regimes on the arbitration process. Below is a recommended model clause for the parties that wish to pursue a re arbitration process by appealing against an award:

Parties to the arbitration process must agree in writing that they would pursue an appeal in case the award issued during the procedure is unsatisfactory. However, while coming up with an agreement, they should be aware of the guidelines to an appeal of an arbitral award as contained in Article V of the New York Convention and Article 4 of the Revised SCIA Rules on Appellate Review. So, the model agreement would look like this:

I ……….(Name) Hereby agree to seek an appeal of an arbitral award in case the arbitration court sitting in…………………..(Location) issues an erroneous judgment, and I will bring the appeal within the 30 days of the judgment before the SCIA Court of Arbitration.

Conclusion

The revised rules are effective in ensuring that the process of re arbitration would help to correct procedural and legal errors that occurred during the arbitration process. Still, while coming up with the revised rules, the SCIA ensured that they were aligned with the international standards and norms of arbitration. This includes the composition of the appealing panel and the grounds of appealing against an award. Even so, the revised rules have some weaknesses. One primary weakness is the requirement that an appeal is made within 15 days. This is against the international norms and regulations that guide the time required for appealing against an erroneous award. The recommended time is 30 days.

Chapter 5: Conclusion

The arbitration process entails the utilization of an arbitrator to address a trade conflict. In most cases, once the arbitral award is issued, it is always final. This means that no other body, including the courts or the arbitration panel, would be allowed to preside over any appeal. Such laws are aligned to those established by the international arbitration communities. The principle of res judicata identifies the need of the two parties in conflict to agree on the methods and process that is to be adopted when solving the conflict. It would be important for both parties to present evidence that shows their agreed process that is to be followed before an arbitrational tribunal within the recommended time. The awarded arbitral can only be reviewed when there is evidence that the process was biased, fraudulent, and the agreement between the two parties in conflict are invalid as per the provision of the law. In this regard, the process of re arbitration should be allowed because it would help to correct an erroneous judgment, and the result is that it would increase confidence in the arbitration process.

The Peoples Republic Arbitration Law of China had some regulations in place that do not support the re arbitration process. However, when it joined the global trade, it introduced the Shenzhen International Arbitration Court (SCIA). The SCIA aimed to investigate the idea of the finality of an arbitral and if it should be absolute. After considering the international standards, SCIA concluded that the finality of an arbitral award should not be absolute. This led to the establishment of Article 53 (1) of the SCIA, to provide guidelines on how the re arbitration process should be carried out. It confirmed that the re arbitration could only be allowed if a competent court recommends a review of the arbitral award in regards to the laws and regulations governing the arbitration agreement. Furthermore, it provides scenarios where an arbitrator can be removed or disqualified from the re arbitration process. SCIA also contributed to the establishment of Article 24 (8) of the SCIA, which confirms that the re arbitration process is only permitted when the parties to the arbitration agreement do not agree on the ruling made by an emergency arbitrator. In most cases, an emergency arbitrator is always appointed by the SCIA court in cases there is the agency to resolve a conflict.

Despite the introduction of SCIA in China, the country has always recorded limited judicial review on the arbitral awards. This is because of the existence of Article 9 of the Chinese Arbitration Law that prevents the revocation of an arbitral award. In most cases, judicial review is likely to be possible if the arbitral procedure was influenced by dishonesty, fraud, and the introduction of new evidence. Such factors are likely to influence the court to order for the re arbitration. Despite, the provided factors, the judicial review still faces some challenges. One of them is the increased costs of reviewing an award, and the other challenge is increased time for resolving a conflict.

Nonetheless, there are three main factors that the court would consider when deciding whether to recommend for a re arbitration. One of them determining if there is a non-compliance with the attribution agreement. The other issue is whether there is an agreement for both parties to engage in a re arbitration procedure. If both the parties to an arbitration process agree for a review of the arbitral award, the court would grant it. The third issue is if the arbitral award is against the law and public policy of China.

China is part of the New York Convention on Arbitration, which has provided guidelines and conditions for undertaking the process of re arbitration. The condition to allow re arbitration as provided in Article V of the New York Convention. The New York convention allows the re arbitration process to occur if the parties in dispute violate the legal provision and the constitution of the location where the arbitration process occurs. Furthermore, the process would only be allowed if the award was beyond the capability of the arbitration tribunal or was associated with the fraud. The Court would only enforce an arbitral award if they adhere to the laws of the state and are within the public policies of the enforcing country.

Moreover, the re arbitration process has several advantages and disadvantages. One of the advantages is that it increases confidence in the arbitration process. As a result, many people will bring cases to the arbitration panes for resolution. The reason for increased confidence in the arbitration process is because of an opportunity to correct an erroneous award. Also, the re arbitration process would eradicate any instances of abuse. The reason is that the arbitration panel will be conscious of the possibility of a review of an arbitral award, and as a result, they would ensure that they follow the laid down rules and regulations when solving the conflict.

Moreover, re arbitration gives the weaker parties confidence even if they are in dispute with a stronger opponent. Given that the arbitral awards can be appealed, the arbitration committee would ensure fairness in the process regardless of the parties involved. Because the re arbitration would ensure fairness of the process, it is likely to contribute to balancing the economic power of both the parties involved. In cases there was no re arbitration, most of the organizations with a higher negotiation power are likely to influence the arbitration panel who will adopt its conditions. Re arbitration also identifies the issuance of foreign awards and enables the correction of the information asymmetry.

The main disadvantage of the re arbitration process is realized in the time and cost that is likely to be incurred by the process. The introduction of the re arbitration process frustrates that main intention for the establishment of the arbitrators. The process of arbitration was mainly to enable quick resolution of trade disputes to enable organizations to quickly resume their operation. However, this is not the case with the re arbitration, which is associated with more time and money. Some of the costs that are likely to be incurred as a result of the re arbitration include the actual cost, cost with regards to the transcript, internet, written awards, and court reports.

Bibliography

Rules and Regulations

Chinese Laws on Arbitration 1994

Dutch Code of Civil Procedure, and Arbitration Ordinance 1986

Federal Arbitration Act 1926

German Code of Civil Procedure 1887

ICC Rules and Regulation on arbitration 1958

New York Convention on the Enforcement of Arbitral Awards 1959

Shenzhen International Arbitration Court 2019

Shenzhen International Arbitration Court 1983

UNCITRAL Model Law 1985.

Case Laws and Precedents

Commonwealth Coatings Corp v Continental Casualty Co [1968] US Supreme Court (US Supreme Court)

deral Supreme Court (BGH), SchiedsVZ (2017)

Future ENE v Shenzhen Cereals [2006] SCIA (SCIA)

Hall Street Associates versus Mattel [2008] US Supreme Court, 552 (US Supreme Court)

Huawei v Samsung [2018] SCIA (SCIA)

Janful Limited v Nanjing Skytech [2010] CIETAC (CIETAC)

IPCO (Nigeria) Ltd v Nigeria National Petroleum [2017] UK Supreme Court (UK Supreme Court)

LM Holdings et al v Jiashijie Group et al [2006] ICC Arbitral Tribunal (ICC Arbitral Tribunal)

Oxford Health Plans v Sutter [2013] US Supreme Court (US Supreme Court)

Siemens International Co v Shanghai Golden Landmark Co [2018] Singapore International Arbitration Centre, TC12 (Singapore International Arbitration Centre)

TCL Air Conditioner (Zhongshan) Co v the Judges of Australia Federal Court [2013] Fedral Court of Australia, 5.87 (Federal Court of Australia)

USA Production et al v Women Travel [1997] SCIA (SCIA)

Journals Articles

Johnson A, ‘Arbitration And Diplomacy In The South China Sea: Forging A Solution’ [2019] J. Disp. Resol

Centner D, and Ford M, ‘A Brief History Of Arbitration’ (2020) 48 The Brief

Jun J, ‘The Integrity Of Finality Of International Arbitral Awards: International Commercial And ICSID Arbitration Awards’ (2020) 28 J. Arb. Stud

Leasure S, ‘Arbitration Law In Tensions After Hall Street: Accuracy Or Finality’ (2020) 39 Ualr L. Rev

Lewin R, and Jacobson M, ‘Is My Arbitration Final Or Is It Groundhog Day’ (2016) 71 Dispute Resolution Journal

Potesta M, ‘The Interpretation Of Consent To ICSID Arbitration Contained In Domestic Investment Laws’ (2011) 27 Arbitration International

Ronald B, ‘Arbitration Or Litigation? Private Choice As A Political Matter’ (2020) 8 Arbitration Law Review

Saleem A, ‘Finality Of Awards: Is It The Key Feature Of The New Saudi Arbitration Law That Will Put The Country In The Global Map Of Arbitration?’ [2013] SSRN Electronic Journal

Suisheng Z, ‘China And The South China Sea Arbitration: Geopolitics Versus International Law’ (2020) 27 Journal of Contemporary China

Talmon S, ‘The South China Sea Arbitration And The Finality Of ‘Final’Awards’ (2017) 8.2 Journal of International Dispute Settlement

Books

Born G, International Commercial Arbitration (Wolters Kluwer Law & Business 2009)

Martinez-Fraga P, He American Influence On International Commercial Arbitration: Doctrinal Developments And Discovery Methods (Cambridge University Press 2020)

Mistelis L, Concise International Arbitration (Wolters Kluwer Law & Business, Kluwer Law International 2015)

Wahlgren P, Arbitration (Stockholm Institute for Scandinavian Law, Law Faculty, Stockholm University 2017)

Wickelgren A, ‘An Economic Analysis Of Arbitration Versus Litigation For Contractual Disputes’ (2020) 59 The Journal of Law and Economics

Appendix 1:

Model Clause for an Optional Appellate Arbitration Procedure

Image Source: SCIA (http://120.25.66.138/web/doc/view_rules/914.html)

[1] Chinese Laws on Arbitration 1994.

[2] New York Convention on the Enforcement of Arbitral Awards 1959

[3] Federal Arbitration Act 1926.

[4]. Hall Street Associates versus Mattel [2008] US Supreme Court, 552 (US Supreme Court).

[5] of Chinese Laws on Arbitration 1994

[6] Huawei v Samsung [2018] SCIA (SCIA).

[7] Shenzhen International Arbitration Court 1983.

[8] Huawei v Samsung [2018] SCIA (SCIA).

[9] Shenzhen International Arbitration Court 1983.

[10] Shenzhen International Arbitration Court 1983.

[11]. Shenzhen International Arbitration Court 1983.

[12] Chinese Laws on Arbitration 1994

[13] Oxford Health Plans v Sutter [2013] US Supreme Court (US Supreme Court).

[14] Shenzhen International Arbitration Court 1983

[15]. Dutch Code of Civil Procedure, and Arbitration Ordinance 1986.

[16] Huawei v Samsung [2018] SCIA (SCIA).

[17] Chinese Laws on Arbitration 1994

[18].M. Potesta, ‘The Interpretation Of Consent To ICSID Arbitration Contained In Domestic Investment Laws’ (2011) 27 Arbitration International.

[19] UNCITRAL Model Law 1985

[20] German code of civil procedure 1887

[21] Commonwealth Coatings Corp v Continental Casualty Co [1968] US Supreme Court (US Supreme Court).

[22]. Federal Arbitration Act of 1926

[23]. Peter Wahlgren, Arbitration (Stockholm Institute for Scandinavian Law, Law Faculty, Stockholm University 2017).

[24]TCL Air Conditioner (Zhongshan) Co v the Judges of Australia Federal Court [2013] Federal Court of Australia, 5.87 (Federal Court of Australia)

[25] UNCITRAL Model Law 1985.

[26]. UNCITRAL Model Law 1985.

[27] Chinese Laws on Arbitration 1994

[28]Siemens International Co v Shanghai Golden Landmark Co [2018] Singapore International Arbitration Centre, TC12 (Singapore International Arbitration Centre).

[29] Shenzhen International Arbitration Court 1983

[30] Future ENE v Shenzhen Cereals [2006] SCIA (SCIA).

[31] New York Convention on the Enforcement of Arbitral Awards 1959

[32] USA Production et al. v Women Travel [1997] SCIA (SCIA).

[33] Shenzhen International Arbitration Court 1983

[34] New York Convention on the Enforcement of Arbitral Awards 1959

[35] Loukas Mistelis, Concise International Arbitration (Wolters Kluwer Law & Business, Kluwer Law International 2015).

[36] Gary Born, International Commercial Arbitration (Wolters Kluwer Law & Business 2009).

[37] Abdulrahman Mamdoh Saleem, ‘Finality Of Awards: Is It The Key Feature Of The New Saudi Arbitration Law That Will Put The Country In The Global Map Of Arbitration?’ [2013] SSRN Electronic Journal.

[38] Stefan Talmon, ‘The South China Sea Arbitration And The Finality Of ‘Final’Awards’ (2017) 8.2 Journal of International Dispute Settlement.

[39] LM Holdings et al. v Jiashijie Group et al. [2006] ICC Arbitral Tribunal (ICC Arbitral Tribunal).

[40] Jung Won Jun, ‘The Integrity Of Finality Of International Arbitral Awards: International Commercial And ICSID Arbitration Awards’ (2020) 28 J. Arb. Stud.

[41] Pedro Martinez-Fraga, He American Influence On International Commercial Arbitration: Doctrinal Developments And Discovery Methods (Cambridge University Press 2020).

[42] Robert Lewin and Michele Jacobson, ‘Is My Arbitration Final Or Is It Groundhog Day’ (2016) 71 Dispute Resolution Journal.

[43] Leasure S, ‘Arbitration Law In Tensions After Hall Street: Accuracy Or Finality’ (2020) 39 Ualr L. Rev

[44] Abdulrahman Mamdoh Saleem, ‘Finality Of Awards: Is It The Key Feature Of The New Saudi Arbitration Law That Will Put The Country In The Global Map Of Arbitration?’ [2013] SSRN Electronic Journal.

[45] New York Convention on the Enforcement of Arbitral Awards 1959

[46] Daniel Centner and Megan Ford, ‘A Brief History of Arbitration’ (2020) 48 The Brief.

[47] New York Convention on the Enforcement of Arbitral Awards 1959

[48] Abdulrahman Mamdoh Saleem, ‘Finality of Awards: Is it the Key Feature Of The New Saudi Arbitration Law That Will Put The Country In The Global Map Of Arbitration?’ [2013] SSRN Electronic Journal.

[49] IPCO (Nigeria) Ltd v Nigeria National Petroleum [2017] UK Supreme Court (UK Supreme Court).

[50] on the Enforcement of Arbitral Awards 1959

[51] Brand Ronald, ‘Arbitration Or Litigation? Private Choice As A Political Matter’ (2020) 8 Arbitration Law Review.

[52] UNCITRAL Model Law 1985.

[53] UNCITRAL Model Law 1985.

[54] Zhao Suisheng, ‘China And The South China Sea Arbitration: Geopolitics Versus International Law’ (2020) 27 Journal of Contemporary China.

[55] Andrew Johnson, ‘Arbitration And Diplomacy In The South China Sea: Forging A Solution’ [2019] J. Disp. Resol.

[56] Abdulrahman Mamdoh Saleem, ‘Finality of Awards: Is It the Key Feature of The New Saudi Arbitration Law That Will Put The Country In The Global Map Of Arbitration?’ [2013] SSRN Electronic Journal.

[57] Abraham Wickelgren, ‘An Economic Analysis Of Arbitration Versus Litigation For Contractual Disputes’ (2020) 59 The Journal of Law and Economics.

[58] Shenzhen International Arbitration Court 1983.

[59] German Code of Civil Procedure 1887.

[60] UNCITRAL Model Law 1985.

[61] Shenzhen International Arbitration Court 1983

[62] New York Convention on the Enforcement of Arbitral Awards 1959

[63] deral Supreme Court (BGH), SchiedsVZ 2017.

[64] Shenzhen International Arbitration Court 2019.

[65] ICC Rules and Regulation on arbitration 1958.

[66] Shenzhen International Arbitration Court 2019.

REARBITRATION AND THE MAIN CHARACTERISTICS OF ARBITRATION

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Chapter 1: Introduction

The Finality of an Arbitral Award is not Absolute

Limited Judicial Review (Court Intervention)

Bibliography

Rules and Regulations

Case Laws and Precedents

Journals Articles

Books

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