ITALY: NO COUNTRY FOR ARBITRATORS?

This essay offers a few remarks on arbitration in Italy where arbitration is still a niche alternative to traditional litigation before the courts. The initiatives taken by arbitral institutions in the face of the challenges to the proper functioning of the courts brought about by the Covid-19 pandemic have kindled new interest in arbitration, and further reforms of the Code of Civil Procedure (expected by the end of 2022) could increase the appeal of arbitration in Italy. The research methodology applied to this essay is the traditional doctrinal methodology aimed at identifying the relevant legal rules, discussing their meanings and the principles supporting them, without overlooking their ambiguities and flaws. Special attention is paid to a few new trends emerged during the Covid-19 pandemic, as well as to a set of forthcoming reforms that should improve the quality of Italian civil justice.In conclusion, some proposals are presented to make arbitration more attractive in Italy. Firstly, the time has come to get rid of the distinction that is only known in Italy and that causes a lot of confusion, between true arbitration (arbitrato rituale), governed by the Code of Civil Procedure, and so-called "free arbitration" (arbitrato irrituale). Then, it is suggested the adoption of a fast-track arbitration, especially for the resolution of disputes in which the value at stake is modest and the legal issues in dispute are not highly complex. © 2022, Universidade do Estado do Rio de Janeiro. All rights reserved.

Trends in International Arbitration: The Fallout from COVID-19

[...]of the disruptions caused by the COVID-19 pandemic, global arbitration has adapted to a 'new normal'. Arbitration trends A number of trends are emerging with respect to life sciences disputes that are anticipated to continue for the foreseeable future, including in particular: * A greater number of disputes arising out of global supply chain disruptions, and use of the pandemic as a defence to contractual non-performance * An increase in disputes over earn-out clauses and pre-closing covenants in M&A transactions * A rise in investor-state claims brought by investors against states for breach of international investment protection agreements * More insolvent parties in arbitrations, which pose particular challenges * An increase in third-party funding of significant claims in international arbitration * The continued use of efficient procedures by arbitral tribunals, including paperless proceedings and remote hearings. Earn-out arrangements are usually intended to bridge the gap between diverging valuations of the target company by the buyer and the seller at the time of closing-in addition to the upfront purchase price, the seller of a business receives further payouts if and when the target company achieves certain agreed performance targets over an agreed period of time after closing. [...]the seller trades the certainty of a lower upfront payment for a potential higher pay-out in the future. [...]party funding of claims Third-party funding of significant claims is now a common feature in international arbitration and has become available in jurisdictions that previously were subject to regulatory restrictions.

Development of International Commercial Arbitration in Virtual Reality During the COVID-19 Pandemic

Since COVID-19 erupted into the world, it has not only changed the life of the civilized world, but also altered the operation of global businesses. It is no exception that it has altered the way international arbitration is conducted-more elements of a typical arbitration that were based on physical presence now occur remotely. Such a new mode of practicing will speed up processes and thus favor efficiency. Nevertheless, there are also disadvantages and concerns, and it will not likely, in the long run, alter the essential elements of international arbitration in the process of decision-making. © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023.

Clean Energy Action Index Efficiency: An Analysis in Global Uncertainty Contexts

Climate change, the scarcity of fossil fuels, advances in clean energy, and volatility of crude oil prices have led to the recognition of clean energy as a viable alternative to dirty energy. This paper investigates the multifractal scaling behavior and efficiency of green finance markets, as well as traditional markets such as gold, crude oil, and natural gas between 1 January 2018, and 9 March 2023. To test the serial dependency (autocorrelation) and the efficient market hypothesis, in its weak form, we employed the Lo and Mackinlay test and the DFA method. The empirical findings showed that returns data series exhibit signs of (in)efficiency. Additionally, there is a negative autocorrelation among the crude oil market, the Clean Energy Fuels Index, the Global Clean Energy Index, the gold market, and the natural gas market. Arbitration strategies can be used to obtain abnormal returns, but caution should be exercised as prices may increase above their actual market value and reduce the profitability of trading. This work contributes to the body of knowledge on sustainable finance by teaching investors how to use predictive strategies on the future values of their investments.

RECONCEPTUALIZING ALTERNATIVE DISPUTE RESOLUTION ECOSYSTEM IN THE DIGITAL ERA: SAUDI ARABIA'S ONLINE TRANSACTIONAL ENGAGEMENTS

The Covid-19 pandemic has exposed societal underbelly in its inadequate institutional, infrastructural, and legal regimes to promote continuous international trade policies in the midst of external disruptions. International trade forms part of global events that promotes cross-border socio-political developmental growth, which discourages arms conflict among nations. Political stability of nation states and international trade among nations intersect inevitably in contemporary times. However, the transactional processes of international trade rely on alternative dispute resolutions (ADR) as one of its imbedded features to resolve disputes within commercial transactions. The ADR are in various forms like arbitration, mediation and negotiation. Contract law and policy principally powers the ADR system. The traditional contract model of consensus ad idem, where parties bargain within their physical presence until a resolution or settlement of the dispute is achieved has become inadequate in the digital era. Covid-19 has made such physical and in-person bargaining impossible because of its fatal nature. This paper seeks to analyze the significance of adapting the preexisting and recognized digital era contract doctrines like wrap, smart and other types of contract of adhesion in the ADR ecosystem. Currently, the Kingdom of Saudi Arabia does not have specific legal regimes that recognizes the digital era transactional formations. For example, contemporary contract now becomes enforceable with just a click of the mouse or a finger-touch on the digital surface of a device or mere browsing of a website when visiting such site. In some cases, within a blockchain system a transactional activity is recorded and becomes difficult to change after parties have agreed to be bound digitally. The paper will conclude by setting out prescriptions that Saudi Arabian Law Schools should conceptualize its curriculum to adapt to the evolving digital era transactional jurisprudence and promote the updating of the laws of the Kingdom to reflect the current realities. © 2022 Gokhale Institute of Politics and Economics. All rights reserved.

China-Australia Relations and China's Policy Choices toward Australia: A Chinese Perspective

Since 2016, Australia's attitude toward China has taken a turn for the worse, and Sino-Australian relations have seen a significant decline. With regard to the change in Australia's attitude toward China, Chinese scholars initially analyzed it mainly from the perspective of the U.S.Australia alliance and the China-U.S.-Australia triangle, viewing U.S. influence as the key reason for the change in Australia's policy toward China. Later, Chinese scholars have become increasingly aware of the significant policy autonomy in Australia's China policy and the inadequacy of viewing Australia's China policy from the U.S. perspective. On the one hand, Australia's unique threat perception and interest perception have shaped the characteristics of its China policy;on the other hand, how to effectively balance security interests and economic interests is a long-standing dilemma faced by Australia under the strategic competition between China and the U.S. The Australian government has shown a degree of policy flexibility in its approach. The limited coercive economic measures taken by China against Australia have sent clear policy signals to Australia and have become a factor influencing its policy towards China. In the coming period, although no obvious opportunity for improvement in China-Australia relations is in sight, both sides may be more prudent and pragmatic strategically, and China-Australia relations can be expected to remain basically stable at a low level.

Domestic Investment Laws, International Economic Law, and Economic Development

‘Development' is a legal concept which has been central to the practice of international economic law (IEL). This Article examines how ‘development' continues to be at the heart of struggles between domestic investment laws (DILs) and international economic law. By examining over 3000 international investment agreements (IIAs) and DILs signed in the last seven decades, this Article identifies the ways in which the concept of development has evolved in tandem with the growth of international economic law by dividing the history of international investment law into six main phases. It traces the emergence of ‘development' in DIL to the decolonization era arguing that post 1990, the proliferation of international investment treaties and growth of investment treaty arbitration have been used as tools of liberalization on the weak premise that this would lead to economic development. In this context, this Article examines closely the interpretation of ‘investment' by ICSID tribunals, promotion of international arbitration for economic development, attempts to internationalize economic development contracts, continued relevance of the New International Economic Order, and shift to sustainable development in IEL discourse.

Global pandemics and moratorium of investment claims: A perspective from Indonesia

The outbreak of the Corona Virus Disease 2019 (COVID-19) has given rise to the intersection of foreign investment protection in connection with adverse regulatory changes and the right of host states to regulate the public interest. Countries have enacted a multitude of policies in pursuit of public health and in handling the repercussions of the pandemic including losses to foreign investors, thus giving rise to arbitral claims. In response, governments may impose customary law defense through the doctrine of police powers under the banner of health reasons. This article features an analysis of Indonesia as a sample country to illustrate possible claims that could arise from its regulatory responses to COVID-19 and possible protections that it can rely upon. In recalibrating the investor-State dispute settlement system, a moratorium on investment claims arising from the pandemic should be endorsed as part of a wider set of reforms.

Dispute Resolution in the New Digital Era-Exploring Arbitration as a Suitable Mechanism to Resolve Disputes over Crypto Assets

The market for crypto assets has grown rapidly in the last couple of years. Buzzwords like cryptocurrency, Non-fungible tokens (hereinafter "NFTs") and metaverse have gone viral. Celebrities, artists, pop singers, e-commerce platforms, financial institutes, airlines, and many others are selling NFTs featuring their icons. The prices for NFTs are soaring. "The Merge", created by digital artist Pak, was sold at US$91.8 million, purportedly one of the most expensive NFTs to date. Staggering numbers like this are piquing the public's curiosity in NFTs. As the market for crypto assets expands, disputes are rife. Suitable mechanisms for the resolution of crypto asset disputes are therefore indispensable. This paper will address potential disputes associated with crypto assets, especially NFTs and cryptocurrencies. It will discuss what types of disputes are likely to arise from them, whether and how the disputes may differ from the currently known disputes and the dispute resolution mechanisms that are applicable. This paper aims to explore whether arbitration is a suitable resolution mechanism for such disputes, how the new developments in international arbitration can help resolve them efficiently, and the potential for arbitration proceedings to adapt to them.

Domestic Investment Laws and International Economic Law in the Liberal International Order

International Economic Law (IEL) has largely regulated cross-border trade and investment in the post-WWII world. IEL has become an important part of the Liberal International Order that prescribes a set of rule-based relationships for international cooperation based on political liberalism, economic liberalism, and liberal internationalism. However, economic globalization has witnessed a relative decline, especially after the 2008 global financial crisis and the COVID-19 pandemic. This form of ‘de-globalization' challenges the assumptions upon which modern IEL is premised. This introductory article to the special issue on ‘Domestic Investment Laws and International Economic Law in the Liberal International Order' explains how domestic law has started playing an increasingly important role in regulating foreign investment. Often overlooked instruments such as Domestic Investment Laws, Investment Screening Mechanisms, and Investment Promotion Agencies are now important tools in promoting or restricting foreign investment flows. Expanding on this premise, the article examines the transition from international to domestic in the Liberal International Order with a focus on Domestic Investment Laws. The move to domestic law does not signal a new era of economic isolation for States. Instead, it presents an effort to achieve similar ends of attracting foreign investors using different means while exercising more control over foreign investment.

Arbitrating "Just Cause" for Employee Discipline and Discharge in the Era of Covid-19

Raphael reassesses the limits of "just cause" during a current global health crisis that has the potential to fundamentally alter labor relations and the role of the modern labor arbitrator. The ethical consequences of this expanding role are then considered. She breaks down traditional theories for articulating "just cause" in light of changing historical conceptions of the limits of arbitral discretion. She concludes with how the current public health and labor crisis of the Covid-19 pandemic has the potential to expand the public role of the labor arbitrator in "just cause" discharge and discipline grievances. While additional arbitration issues are likely to arise in response to the Covid-19 pandemic, they are beyond the scope of this work.

Cooperative Arbitration in Euskadi. Proposals for improvement to provide the SVAC-BITARTU with a greater guarantee

In the current Social and Economic situation generated by the COVID-19 pandemic, we have to highlight the primary role that Cooperative Societies have adopted in our Society. However, they are not alien to the con-flicts that usually arise between them and their partners and vice versa. There-fore, in the event that the matters of the conflicts are freely available between the parties, they could be solved by extrajudicial means, which have gained a special role in our society. In this way, this author considers it opportune to make a series of improvement proposals regarding the Arbitration Procedure of the Higher Council of Cooperatives of Euskadi (SVAC-BITARTU) to provide it with even greater guarantees than it currently has.

New Challenge in International Arbitration: On-line Hearings

After the outbreak of Covid-19 pandemic, to use the technological tools in judgement process has become a current issue. Particularly in arbitration, on-line hearings have come into prominence. Many of international arbitration centers issued regulations on on-line hearings since April 2020. ICC, CAS, LCIA and ISTAC may be regarded among these. Especially, ICC and ISTAC issued detailed rules on on-line hearings which include the conduct of the hearing, confidentiality of arbitration, equality of arms etc. These regulations and the attitude of international arbitration centers shows the tendency on behalf of on-line hearings during the pandemic and the post-pandemic period. When taking into consideration saving on time and cost saving qualifications of on-line hearings, it is thought that it will continue to be a good option for conducting hearings in arbitration. However, it must be kept in mind that both parties and the arbitral tribunal should exercise due diligence in conducting arbitration process to provide cyber security.

Private Protection Agencies and Infectious Diseases

Emergencies critically threaten rights under constitutionally limited government, but before 2020, little scholarship considered the threat posed by a pandemic. COVID-19 has led governments to impose unprecedented restrictions on personal and economic freedom, even in developed and largely free nations. To explore how institutions might more effectively protect individual rights during a pandemic, this paper examines how private protection agencies under libertarian anarchy might deal with demands for protection from a disease in privately owned public spaces.

New technologies in Polish commercial arbitration on the background of European Union regulations

Commercial arbitration in Poland has to face contemporary problems, including those related to the constant development of information technologies, and therefore new technologies. It is seen during the COVID pandemic. This article is intended to assess the state of Polish regulation on the background of European Union regulations in the abovementioned area and to propose potential changes to the Polish legislation' if they are needed.

Australian COVID-19 measures and its international investment obligations

Purpose: This paper aims to examine the prospect for international investment disputes in the aftermath of the COVID-19 pandemic due to measures implemented by the Australian government to tackle the pandemic. Design/methodology/approach: Doctrinal research. Contains qualitative analysis. Findings: This paper finds that claims based on the protections in the International Investment Agreements (IIAs) signed by Australia are unlikely to succeed and that Australia’s COVID-19 measures can be justified as necessary measures under the general and security exception clauses included in more recent IIAs and under customary international law. Originality/value: In the context of the COVID-19 pandemic, scholars have written papers apprehending possible claims by international investors against emergency measures adopted by host countries to face the pandemic which might also have damaged the interest of the foreign investors. The existing literature is too vague and general. To the best of the authors’ knowledge, this is the first paper that draws some specific conclusions in this regard applicable to the COVID-19 regulatory measures taken by Australia. While the existing literature projects the possibility of such investor claims, this paper argues that at least no such claim would succeed against the COVID-19 measures taken by Australia. © 2022, Emerald Publishing Limited.

Defense or cooperation between states and international investors in times of crisis?

International investment is protected by international law by setting the standards of legal treatment that host state governments have committed themselves to in their investment treaties. Therefore, these standards of protection must be respected even in times of crisis, regardless of the reason that generated it, the policy of attracting and maintaining an investment climate favorable to international investment being an attribute of each state. If he does not find adequate protection or if he cannot negotiate contracts adapted to these conditions, nothing can prevent an investor from changing the direction of his business, in order to protect the investment made. On the other side of the barricade, the states raise the shields of force majeure and necessity. Of course, it is preferable for the barricade to turn into a round table of cooperation. The issue of violating one or more standards by states is one of the most debated at the moment, as international arbitration practice has decisions that oblige states to significant compensation. In my study I used as a research method the interdependent introspection, analysis and synthesis through analogies developed in a comparative method.

Use of Web Conferences in Arbitration Courts of the Russian Federation: Issues of Legal Regulation

The initiation of restrictive measures throughout the Russian Federation in order to prevent the spread of COVID-19, as well as the inability of courts to function as usual, demonstrated a high need to improve judicial activity in terms of the use of modern information technologies. On the one hand, the impossibility of holding court hearings and performing other procedural actions in connection with the ban on visiting court buildings by the participants in the process entailed the suspension / postponement of court proceedings in most cases (except for those that were classified as urgent), on the other hand it stimulated a quick response to the current situation in the form of the creation of new online judicial services. The author analyses the peculiarities of holding a court session by using a web conference, highlights the advantages, and indicates the existing risks. In the course of the study the author comes to the conclusion that the emergence of the possibility of holding court sessions through web conferences made it possible to optimize the activities of the courts and ensure the prompt access of individuals to the performance of certain procedural actions in an electronic and remote format, which is definitely the future of the judicial system. The need for these transformations is unconditional. Research contribution: the mechanism for conducting court sessions in the online format should be provided for in the relevant regulatory legal act, in which both procedural and technological solutions should be fixed. Without proper legislative regulation, it is impossible to fully ensure access to justice and guarantee the observance of the rights of persons participating in a court session via a web conference. © 2021 ACM.

The ACICA Arbitration Rules 2021: Advancing Australia’s Pro-Arbitration Culture

This article compares the new Rules of the Australian Centre for International Commercial Arbitration (ACICA) with ACICA’s 2016 Rules and those of other arbitration institutions, especially in the Asia-Pacific region. It shows how the revisions help to minimize formalization and promote efficiencies, arguably essential for arbitration’s legitimacy given that many of arbitration’s design features are traded off for an attenuated model of the rule of the law, according to a recent analysis by Singapore’s Chief Justice Sundaresh Menon. The article explains new ACICA Rules aimed at reducing costs and delays, including measures to deepen digitalization of arbitration following the Coronavirus disease 2019 (COVID- 19) pandemic and to reduce the consent-based limitations inherent in arbitration, especially for multi-party and multi-contract disputes. Other new provisions include time limits for awards, and reference to mediation, although not ultimately hybrid Arb-Med. The article also examines how the Rules balance confidentiality with transparency, including new provisions for disclosure of third-party funding. It concludes by reiterating how the 2021 ACICA Rules help meet the expectations of international arbitration users and practitioners, according to recent surveys, and link to possible further reforms to underpin Australia’s increasingly pro-arbitration culture. © 2021 Kluwer Law International BV, The Netherlands

PROTECTING FOREIGN INVESTMENT AND PUBLIC HEALTH THROUGH ARBITRAL BALANCING AND TREATY DESIGN

This article analyses the fraught relationship between host States’ obligations under investment agreements and their regulatory powers in the field of public health. First, tribunals addressing the merits of health measures have exercised considerable deference to States under existing treaties. Second, the recent generation of treaties spells out health considerations to encourage respondents or tribunals to adopt broad interpretations of the right to regulate, general exceptions, or article-specific carve-outs. Clauses modelled on GATT exceptions may prove difficult to invoke due to the ‘necessity’ threshold. Finally, the Kyoto Protocol may serve as a model of incentivising private investment in the public health sector.