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Series:

Georg Nolte

Abstract

The United Nations International Law Commission occasionally deals with the law relating to international organizations. A well-known example is its work in preparation of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986. It is less well-known, but perhaps more important for the practice of international organizations, that the Commission has in recent years also addressed other relevant issues in this field. Those include the responsibility of international organizations (2011), the role which the practice of international organizations may play in the interpretation of their constituent instruments (2018) and in the formation of customary international law (2018), as well as considerations on whether the topic ‘Settlement of disputes to which international organizations are parties’ (2016) should be put on its agenda. This chapter reflects the 2018 aiib Law Lecture, summarizing the work of the Commission on these aspects of the law of international organizations and engages in some general reflections.

Series:

Andreas Baumgartner

Abstract

This chapter positions commercial dispute resolution as a major enabler of economic development. Going one step further, it argues that commercial dispute resolution also makes for good ‘lighthouse’ judicial reform projects, due to its focused scope and the quick impact potential in an area where competition between countries requires urgent action. Success requires a comprehensive approach around five building blocks: the legal basis; organisational and physical setup; people excellence; communications; and overall strategy and change management. In its second half, the chapter moves from today to setting out four hypotheses for the future: Firstly, courts of the future will be a service rather than a location, with courtrooms of the future being virtual and customer centric providers capturing the market. Second, commercial dispute resolution will become far more differentiated, as well as competitive on the international stage. Third, private sector solutions will complement and compete with state-offered or endorsed solutions. Fourth, artificial intelligence is about to change the face and nature of dispute resolution fundamentally. Each of those trends offers ample opportunities to unlock economic potential. The chapter concludes by pointing out how international organizations can contribute.

Series:

Matthew Gearing and Joe Liu

Abstract

This chapter traces the evolution of the Hong Kong International Arbitration Centre (hkiac)from 1985 when it was established as a regional arbitration center to its present status as one of the world’s major international dispute resolution organizations. The chapter focuses on hkiac’s contributions to effective international dispute resolution over that time, including its participation in legislative reforms in and outside of Hong Kong, its global outreach efforts and its promulgation of arbitration rules with trend-setting provisions for increasingly complex disputes. hkiac’s case statistics will be used to identify trends in international dispute resolution and to present hkiac’s experience in international commercial and investment treaty cases involving governments entities or international organizations.

The chapter will then discuss the use of hkiac for dispute resolution by international organizations. In that respect, real-life examples will be used to examine a number of disputes that were submitted by an international organization to hkiac for arbitration under a loan agreement or a shareholders agreement. The chapter will also discuss a recent project in which an international organization decided to include an hkiac dispute resolution clause in its employment agreements after considering other alternatives.

The chapter will conclude by addressing hkiac’s unique position to resolve disputes between Chinese and non-Chinese parties with a particular focus on disputes arising from China’s Belt and Road Initiative.

Series:

Ramit Nagpal and Christina Pak

Abstract

This chapter focuses on the developmental aspect of dispute resolution based on the experience of the Asian Development Bank (adb) over the last twenty years. adb has undertaken projects that support dispute resolution mechanisms in its developing member countries with the aim of achieving development impacts towards a more inclusive and sustainable economic development in Asia and the Pacific. This chapter posits that the promotion of dispute resolution through thematic or targeted interventions has yielded more effective results compared to larger-scale interventions through broader justice sector reform programs. This is demonstrated through adb’s recent experience financing and implementing technical assistance projects under its Office of General Counsel’s Law and Policy Reform Program focused on environmental and climate change adjudication, access to justice in gender-based violence cases and creating and strengthening international arbitration laws to foster foreign direct investment and cross-border trade. adb does not necessarily shy away from ambitious investments in the justice sector, but recent experience has shown that through smaller, well-targeted interventions with strong ownership by key stakeholders within their absorptive capacity, it has been able to demonstrate meaningful impact in the area of dispute resolution.

Series:

Malik R. Dahlan

The regionalism versus internationalism debate has given rise to a rich discourse in international trade law. Regionalism is viewed either as a way to promote international integration, or to protect regions and thus against the multilateral spirit that characterizes a truly global organization. This debate is explored in international financial law and international financial institutions therein, with the Asian Infrastructure Investment Bank (aiib) and New Development Bank as examples. This chapter suggests that ‘principled’ dispute regulation, having an intellectual anchor in ‘multilevel governance’, provides a new dimension to underpin regional governance. Exploring China’s Belt and Road Initiative (bri) has the potential to redefine multilevel trade governance and the laws that establish its order. As a result, new ‘Eastern’ international legal norms are emerging. A new international trade and investment order will necessarily lead to disagreements over its interpretation. However, existing dispute resolution mechanisms may not work effectively. In order to overcome this practical challenge, this chapter examines some important legal aspects of the bri and offers a new concept of dispute regulation. For the central argument, mediation will be specifically analyzed to inform a new aiib paradigm. The chapter intends to begin a discussion of some emerging trends in international trade and relevant rules, in the context of the aiib.

Series:

Cavinder Bull

Abstract

This chapter will discuss how international arbitration institutions have been innovating and improving rapidly in the last few years in order to meet the needs of users. Institutional rules have introduced provisions for emergency arbitrators, expedited proceedings and summary dismissal, just to name a few. Whilst there is still room for improvement, such innovations have helped to keep arbitration relevant and effective. The competition between various arbitral institutions has also contributed positively to spur arbitral institutions to do better. The beneficiaries of this dynamic are the parties that use international arbitration for dispute resolution as well as international trade more generally.

Series:

Marie-Anne Birken and Kim O’Sullivan

Abstract

The practice of mediation dates back to very ancient times and was part of early Roman law. Mediators existed in many cultures, and often overlapped with the roles of traditional wise men and tribal chiefs. The settlement of disputes through mediation is also part of Confucian and Buddhist history in the belief that conflicts must be resolved peacefully to maintain the natural harmony of life and avoid losing respect of others. Although mediation, as a formal process for alternative dispute resolution, was more recently developed in Anglo Saxon countries and is now increasingly widespread in common law jurisdictions, it is equally suitable for countries with civil law traditions. This chapter considers the practice of mediation in Central Asia, specifically the Commonwealth of Independent States countries, and reports on the European Bank for Reconstruction and Development’s support for the development of mediation in that region. There is a perception that countries are less receptive to mediation than other countries because of their post-Soviet legacy, although the legal traditions of these countries include a number of out-of-court resolution mechanisms similar to mediation, even during the Soviet era. In any event, at a time when courts are under ever-increasing time and resource pressures, flexible dispute resolution processes are required that transcend national systems; be they of a common or civil law cultural tradition.