The Performance and Liability of Arbitrators and Arbitral Institutions considering the Nature of an Arbitration Clause
1st Edition
Published on 7. February 2025
411 pages
978-3-7489-4865-0 (ISBN)
Description
This book constitutes a comprehensive analysis of the performance standards of arbitrators and arbitral institutions. Through the prism of the nature of an arbitration clause, as well as the place of arbitration in the legal system, it considers what the rights and obligations of the arbitrators and arbitral institution are, what kind of breaches of the relevant standards, and under what circumstances, could result in the imposition of personal liability on them, and where could any resulting claims be pursued. With numerous references to the up-to-date case law from various jurisdictions, the work presents collected standards that make up the institution of personal liability in international commercial arbitration.
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Magdalena Gutowska
The Performance and Liability of Arbitrators and Arbitral Institutions considering the Nature of an Arbitration Clause
Book
02/2025
1st Edition
Nomos
€139.00
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Content
- Cover
- Introduction
- Part I Arbitration and an arbitration clause: nature and key institutions
- § 1 Introductory remarks
- § 2 The composite nature of arbitration
- § 3 Theories on the nature of international arbitration
- § 3 A The juridical theories
- § 3 A I The jurisdictional theory
- § 3 A II The contractual theory
- § 3 A III The mixed or hybrid theory
- § 3 A IV The autonomous/sui juris theory
- § 3 A V The concession theory
- § 3 B The relationship theories on the nature of arbitration
- § 3 B I The status/office theory
- § 3 B II The agency and power of attorney theories
- § 3 B III The partnership theory
- § 3 B IV The mixed or hybrid theory
- § 3 B V The contract theory
- § 4 Arbitration and human rights
- § 4 A The applicability of human rights instruments to arbitration
- § 4 B The indirect applicability of human rights instruments to arbitration
- Part I: Conclusions
- Part II The arbitrator's and the arbitral institutions' roles
- § 5 The arbitrator's contract
- § 5 A Introductory remarks
- § 5 B The key concepts
- § 5 C The constitution of an arbitral tribunal and the termination of the arbitrator's mandate
- § 6 The legal character of the arbitrator's contract
- § 7 The role of arbitral institutions
- § 7 A Introductory remarks
- § 7 B Defining institutional arbitration and arbitral institutions
- § 7 C The activities undertaken by the arbitral institutions
- § 7 D The nature of the institutional rules
- § 8 Scope of the receptum arbitrii. The role and the powers and duties of the arbitrator
- § 8 A The scope of the receptum arbitrii
- § 8 B The arbitrator's broad procedural powers
- § 8 C The arbitrator's rights
- § 8 D The arbitrator's duties
- § 8 D I The duty to resolve the dispute in an adjudicatory, diligent, and efficient manner
- § 8 D II The duty to treat parties equally and fairly
- § 8 D III The duty to personally fulfill the mandate until its statutory expiration
- § 8 D IV The duty of confidentiality
- § 8 D V The duty of independence and impartiality
- § 8 D V 1 The concept of impartiality and independence
- § 8 D V 2 The IBA Guidelines on Conflicts of Interest in International Arbitration
- § 8 D V 3 The institution of challenge of an arbitrator
- Part II: Conclusions
- Part III Liability of arbitrators and arbitral institutions
- § 9 Introductory remarks and liability regimes classification
- § 10 Arbitrator's civil immunity: an overview
- § 11 Institutional rules and soft law instruments
- § 12 Liability considerations
- § 12 A The contractual dimension: the contractual nature of the arbitral clause and the receptum arbitrii
- § 12 B The axiological and teleological dimension
- § 12 C The systemic dimension
- § 12 A-C: Conclusions
- § 13 Liability regimes - a comparative framework
- § 13 A Germany
- § 13 B Austria
- § 13 C Switzerland
- § 13 D Poland
- § 13 E The USA
- § 13 F France
- § 13 G England and Wales
- § 13 H The Netherlands
- § 13 I Other jurisdictions
- § 14 Arbitral institutions
- Part III: Conclusions
- Part IV The relevant standards: practical assessment and the conflict of laws framework
- § 15 The emerging standards
- § 16 Conflict of laws framework
- § 17 Performance and liability standards: conclusions
- § 18 Summary of results
- List of sources
