SACM - United Kingdom
Permanent URI for this collectionhttps://drepo.sdl.edu.sa/handle/20.500.14154/9667
Browse
7 results
Search Results
Item Restricted Third-Party Funding in International Commercial Arbitration(University of Cabmbridge, 2024) Alturki, Ibrahim Abdullah I; H Andrews, NeilABSTRACT This thesis explores the complexities surrounding third-party funding (‘TPF’) in international commercial arbitration, comprehensively examining the relevant ethical and legal challenges. The research addresses how TPF has evolved from the shadowy confines of maintenance and champerty into a more accepted method to access justice. It investigates various funding mechanisms and identifies ethical issues and procedural flaws in TPF. Chapter One lays the groundwork for the thesis by outlining the research questions, key issues and scope. It critically reviews the existing literature on TPF, identifying significant gaps and highlighting the contributions of this research. The chapter concludes with a detailed description of the methodologies employed, including doctrinal, theoretical, comparative, and reform-oriented approaches, demonstrating how they collectively support a thorough investigation of the topic. Chapter Two explains the nature of TPF and examines its history and theoretical foundations, including tracing its roots within ancient societies, considering the impediments of the doctrines of maintenance and champerty and noting the modern appeal of TPF as vehicle for delivering economic access to justice. This chapter examines the conceptual basis of TPF and its mechanisms and structures. It outlines the complexities of defining TPF and advocates for a comprehensive definition focusing on funding activities rather than individual stakeholders. Chapters Three and Four adopt a doctrinal and comparative approach, examining the evolution and regulation of TPF in common law jurisdictions, namely, England and Wales and Australia, as well as civil law jurisdictions, namely, Germany and the Netherlands. The research highlights disparities between these systems, identifies regulatory gaps and proposes strategies to mitigate potential risks. Chapter Five explores where TPF overlaps with international commercial arbitration. It begins with an overview of the applicable laws and rules, explaining how they govern arbitration. The chapter then contrasts arbitration with litigation, highlighting the unique aspects of TPF in arbitration. It discusses how TPF fits within the arbitration context and examines its implications, emphasising the distinctions and specific considerations relevant to TPF in arbitration. iv Chapter Six delves into the practical implications of TPF in international commercial arbitration, examining the ethical and procedural issues. This chapter examines current international commercial practice concerning maintenance and champerty in arbitration, conflicts of interest, jurisdictional and admissibility considerations, confidentiality, disclosure and costs. It then provides proposals on how to address these issues. This thesis asserts that while TPF offers opportunities to enhance efficiency and accessibility in arbitration, proper regulation is crucial to prevent abuse and ensure fairness for all parties involved. The overarching theme of this thesis is the balancing act required in regulating TPF. While it provides a pathway for parties to gain economic access justice, its profit-driven nature necessitates careful oversight to prevent abuse. This preface introduces the research’s core structure and sets the stage for further discussion on how TPF can coexist with the traditional framework of international commercial arbitration without compromising its integrity. By proposing a balanced approach to TPF regulation, this thesis aims to guide stakeholders toward a more ethical and consistent arbitration environment.24 0Item Restricted The Public Policy Exception to The New York Convention: The Gulf Cooperation Council (GCC) Perspective(University of Reading, 2024-09-20) aldhafeeri, ahmed; Adebola, Bolanle; Merkin, RobertDespite the crucial role of public policy in the recognition and enforcement of arbitral awards, the New York Convention 1958 lacks any explicit elucidation of this exception. This absence of clarification has sparked concerns that public policy may be subject to misuse or misapplied in some states, including the Gulf Cooperation Council (GCC) States. Some practitioners attribute the misapplication of public policy in these States to the impact of Sharia, which is often utilised as a synonym for public policy. Hence, they suggest that these States should minimise the role of Sharia. The literature on public policy in the GCC States is limited. To build a thorough understanding of public policy within these states and to evaluate their practices, a doctrinal methodology was primarily employed for the critical analysis of both primary and secondary sources. Uniquely, and contrary to other studies that treat GCC States as a monolithic bloc, this thesis argues that the application of the public policy exception varies across the GCC States. It argues further that GCC States do not follow a specific method in applying and interpreting public policy. While practices in Qatar, and the UAE demonstrate broad application and interpretation of public policy, their counterparts—Kuwait, Oman, and Bahrain—show a more favourable approach towards the enforcement of foreign arbitral awards and the application of public policy. The misapplication of public policy is attributable to two primary factors: first, inadequate legislation regulating arbitration, including the role of Sharia in this process; and second, the lack of familiarity among courts and arbitration bodies with the application of public policy. The thesis finds that Sharia and public policy are not synonymous; however, Sharia constitutes a part of the GCC States' public policy. Additionally, it concludes that Sharia does not inherently hinder the recognition and enforcement of foreign arbitral awards. Nevertheless, the unclear way GCC States adopt Sharia contributes to the misapplication and misinterpretation of public policy. Foreign arbitral awards that breach Sharia may still be enforceable in the GCC States, provided they do not contravene the primary sources of Sharia, namely the Quran and Sunnah. The thesis suggests codifying Sharia or adopting a specific school of jurisprudence as ways of ameliorating the problem. It also urges the legislatures in the GCC States to adopt a unified arbitration law that distinguishes and categorises public policy into, for example, domestic and international public policy.14 0Item Restricted Arbitration in maritime transport contracts between Saudi law and international law(Saudi Digital Library, 2023-11-23) Aldawsari, Sultan; Eden, PaulIn 2019, Saudi Arabia introduced the new Maritime Code, which is considered to be aligned with international law in providing a comprehensive legal framework for the maritime sector. Other steps Saudi Arabia has taken to enhance arbitration law in the maritime sector include the establishment of the Saudi Centre for Commercial Arbitration (SCCA) and the revised SCCA Arbitration Rules in 2023. These developments in Saudi Arabian law present a viable scope for comparison between Saudi Arabian law and international law. This dissertation limited this comparison to the field of commercial arbitration for maritime contracts. The specific scope of this dissertation was to analyse the resolution of maritime commercial contract disputes under Saudi arbitration law. This research concerned the question of whether the Saudi law contained in the Maritime Code of 2019 provides provisions for arbitration in maritime transport contracts which are comparable with international law in this field. Using a combination of doctrinal research and comparative legal research methods, this dissertation engaged with the emerging law in Saudi Arabia around maritime contract dispute arbitration. The dissertation found that the Saudi legal system had made significant changes to the framework on foreign arbitration, thereby aligning itself with the New York Convention and the UNCITRAL Model Law. However, the dissertation also determined that the enforcement of foreign awards in the event of conflict with Sharia is still an area of concern.19 0Item Restricted A Research Paper into Whether Arbitration Should be Used without Restrictions in Administrative Contracts in Saudi Arabia(Saudi Digital Library, 2023-11-06) Alhakeem, Nusaybah; Stanislava, NedevaGovernments may contract with others seeking employment, supplies, and other general procurements in order to fulfil their duty to provide public services and facilities. When they become unable to do that on their own, they are obliged to contract with national or foreign private individuals to meet their obligations. The court is usually responsible for solving disputes arising from these agreements. However, arbitration can be used sometimes. It is one method of alternative dispute resolution (ADR) which is considered to be a friendly way to solve issues instead of traditional court. States usually prefer their national judiciary and many States restrict the use of arbitration to resolve administrative contract disputes, whereas private parties usually prefer arbitration as a neutral method to resolve conflicts. Saudi Arabia has restricted the use of arbitration for its entities by law. It is claimed that these restrictions will affect the State’s economy and make it an unattractive environment for investors. This topic is important and relevant due to the high demand for using administrative contracts to serve public interests and the strong preference for private individuals to use arbitration. paper discusses the potential reasons behind restricting Using a doctrinal methodology, this the use of arbitration for government entities, explaining that reasons could be political, financial, judicial, or based on precedence. Based on these reasons, it then investigates whether the Saudi government entities should have the right to arbitrate without any restrictions, such as approval from the highest authority. This work aims to establish if these grounds are reasonable and whether arbitration should be used without restrictions in administrative contracts. Moreover, it critically evaluates these reasons by investigating the internal legal system and assessing if any improvements can be suggested or recommendations made. Even though some believe that restrictions will reduce investment in the State and that government agencies should have the right to arbitrate without permission, this paper argues that arbitration should remain restricted in order to protect the sovereignty of the State and public interests.17 0Item Restricted Critical Analysis of the Saudi Commercial Arbitration Law Position on the Appointment of Women As Arbitrators: Obstacles and Solutions(saudi digital library, 2023-03-01) Alqahtani, Rahaf; Youseph, FarahThis thesis explores the evolution of the Saudi Commercial Arbitration law and the legal challenges related to recognising and enforcing commercial arbitral awards. Moreover, it sheds light on international treaties concerning commercial arbitration law and the role of women, especially the ones to which Saudi Arabia is a signatory. The role of women in the Saudi judicial system has become more visible and effective. Currently, they are licensed lawyers and legal academics. Nonetheless, one of the issues the thesis examines regarding Saudi arbitration law is that it remains unclear whether women are legally allowed to become arbitrators. The law remains silent, which makes it subject to interpretation. Some interpretations limit arbitration to men, while others open it up to women. The thesis suggests that the involvement of women as arbitrators has to be legally clarified to avoid unnecessary confusion and put forth the requirements for arbitration licenses for women. That way, the Saudi commercial arbitration law clarifies that the parties to arbitration in the Kingdom can choose an arbitrator regardless of gender. It concludes by offering a prescription which spans from repealing and replacing the current commercial arbitration law to amending article fourteen of the law to clarify the issue, to triggering the international treaties on arbitration to which Saudi is a signatory by clarifying that the gender of an arbitrator is not restricted in Islamic law. Therefore, the Saudi commercial arbitration law recognises the role of women in arbitration. Any of the three proposals can serve the purpose and assist the Saudi commercial arbitration law to become more inclusive as it aspires to achieve the objectives of the Kingdom’s 2030 vision.61 0Item Restricted Is the Requirement for Arbitrators to be “Independent” Ever Really Possible Given the Small Pool of Qualified Arbitrators Available?(2023) Akhtar, Hashim; Ghouri, Ahmad; Harder, SirkoIn the light of the analysis it can be concluded that the issue of the potential bias of arbitrators often arises in the context of arbitration. It is because the arbitration is confidential and therefore the parties have to rely that the arbitrator will exercise their duty of disclosure. Therefore, the key issue concerning the independence of arbitrators centres around the principles of duty of disclosure and duty of confidentiality. The issue becomes even more complex given the fact that the number of available arbitrators is not indefinite and according to the statistics the pool of qualified arbitrators is relatively small in the UK. For this reason, it is not uncommon that the same arbitrator has overlapping appointments. The Halliburton decision did not provide sufficient clarity on this issue. A further clarity is necessary. One solution is that by way of developing soft-law in a form of a guidance that would provide a non-exhaustive list of circumstances where a disclosure must be made. A disciplinary body that would regulate the arbitrators’ appointments would be helpful in enforcing the soft-law instruments. This would help to further strengthen the principle of confidentiality given that the disputes over the arbitrators’ bias would be resolved out of court and thus preserving the confidentiality of arbitration. It can be concluded that the arbitrator’s profession is not yet sufficiently regulated and that similar disputes may arise in the future.7 0Item Restricted Is International Investment Law Entering a Brave New World of Investor-State Relations Without Arbitration and Is This Even Possible?(2023) Almashharawi, Nashwah; Guntrip, EdwardIn conclusion, it is evident that evaluating the advantages and disadvantages of investor-state arbitration is not a straightforward issue. As was seen in chapter II there is a strong criticism against investor-state arbitration. Likewise there are also those who believe that the investor-state arbitration is the only legitimate mechanism to resolve disputes between foreign investors and host state. Therefore, the opinions on these questions are not unanimous. However, what is certain that alternatives to investor-state arbitration have been explored by different countries and international bodies such as UNCITRAL. The research has shown different alternatives to investor-state arbitration. It is evident that various attempts have been made to remedy the weaknesses of investor-state arbitration regime. Despite its strengths it would be wrong to conclude that replacing investor-state arbitration with a different regime is an easy option. It is because all other alternatives are less formal than arbitration. Therefore, they may lack the integrity that investor-state arbitration has. Furthermore, any alternative would require ensuring procedural fairness and additional scrutiny. This means that any reform to investor-state arbitration must take a holistic approach. As Caron and Shirlow argue “reforms to one procedure may produce unintended consequences for others.” This can be seen in the recent discussions in UNICTRAL’s Working Group III which aims to analyse and provides answers as to how to reform investor-state arbitration. It is suggested that the strengths of all other methods available should be taken into account as a way to improve investor-state arbitration. As Benedict and Schill argue if the strengths of alternative methods are not used as an means of improving investor-state arbitration then these methods will simply generate ‘an exit valve’ for States and investors seeking to resolve their disputes without ‘public scrutiny’ . For these reasons, abandoning investor-state arbitration and replacing it with an alternative dispute resolution method is not something that would happen in the near future. A more realistic approach is that the current calls for a reform as well as other alternative methods would serves as an insight on how to best improve the current investor-state arbitration.5 0