Tribunal Secretaries in International Arbitration, by J. Ole Jensen Tribunal Secretaries in International Arbitration, by J Ole Jensen. Published by Oxford University Press ( 2019, 474pp) J D James Menz J D James Menz Senior Litigation Expert, Bombardier Transportation, Berlin, Germanypast Deputy Secretary General and Head of Case Management, German Arbitration Institute (DIS) Email: james.menz@rail.bombardier.com Search for other works by this author on: Oxford Academic Google Scholar Arbitration International, Volume 35, Issue 3, September 2019, Pages 387–390, https://doi.org/10.1093/arbint/aiz014 Published: 09 October 2019

Pope Gregory the Great wrote hundreds of letters to all corners of the Roman Catholic world during his papacy AD590–604. They conveyed his wishes concerning the behaviour of his flock, but many of them were also about disputes and his recommendation for their resolution. It is striking that his preference was for mediation and arbitration over litigation, and he was clear how that should be carried out. A discrete example of this preference can be found in letters he wrote to Sardinia, particularly concerning the disputes of women there.

The question of State succession to BITs has recently gained some attention by scholars as a result of an increasing number of cases dealing with the issue. This article examines awards decided in the context of dissolution of State and secession. My analysis shows that while many tribunals in the context of the dissolution of Czechoslovakia have not explained why a new State could be considered to be bound by obligations arising from a treaty entered into by another State, many others have correctly explained that treaty continuation was the result of exchange of letters between the States concerned. In the context of the secession of Montenegro and the break-up of the USSR, tribunals have also correctly affirmed that the continuing State remains bound by the treaties that had been entered into before the date of succession. No tribunal has therefore endorsed the principle of automatic succession to bilateral treaties set out under Article 34 of the 1978 Vienna Convention.

International arbitration commentators commonly ask of a proposed policy or practice whether it is ‘pro-‘ or ‘anti-arbitration’. Framing the question that way presupposes a shared understanding of what does or does not make a policy or practice arbitration-friendly. In truth, the ways in which policies or practices may affect international arbitration’s well-being are manifold. They may even distinctly serve international arbitration’s well-being in some respects while equally distinctly disserving it in others. It behooves those who take international; arbitration’s well-being seriously to acknowledge the multiplicity of metrics for identifying what is ‘pro-’ and what is ‘anti-arbitration’ and to seek the most appropriate trade-offs among them, in consideration of their respective importance in whatever trade-off is entailed. Also, too often a policy’s or practice’s friendliness to arbitration is examined through too narrow a lens. Society embraces values that are fundamental in ways that surpass—and properly outweigh—international arbitration’s interests narrowly conceived. Giving effect to those values and securing the legitimacy that confers may, even when doing so fails to advance a narrowly pro-arbitration agenda, be the most pro-arbitration move one may make.

Since 2008, the House of Lords decision in Fiona Trust has guided the interpretation of arbitration clauses in England. The Fiona Trust approach has been rejected by the Supreme Court of New South Wales, but now endorsed by the Federal Court of Australia. As a result, two of Australia’s most important commercial courts now take differing approaches to the construction of arbitration clauses.

For longer than I can accurately recall, I have been a fan of the work of Derek Roebuck. As an academic, it has seemed to me until recently that international commercial arbitration was more performance art and a matter of practical wisdom than it was a subject to be studied. The only ‘real’ academic subjects were the cognate subjects—private international law, procedure, comparative law, and the like; that is, with the exception of history, because history brought depth and enrichment to what seemed otherwise to be largely a series of practical challenges to be worked out in the particular case with diligence and good sense. And so, when eventually I had the pleasure of meeting Professor Roebuck, his scholarship was already high on my list for works on arbitration. I had enjoyed his wonderful stories of arbitration in Greece, Rome, England, and the Middle Ages and the ways in which it had flourished and contributed to the welfare of businesses and individuals. All of these were told with the magical sense of discovery that comes of learning the truth of what one always suspected to be the case, but which had never been the subject of conventional wisdom.

Forty years on from the decision of the House of Lords in the Miliangos1 case, this welcome book explores how the law has since developed. Miliangos, and the later 1979 pair of the Folias and the Despina R,2 swept away the well-established law confirmed by the House of Lords in Havana Railways3 that an English court can only give judgment in pounds sterling. The old rule covered claims in debt, damages for breach of contract and damages in tort. But what exactly has replaced Havana Railways? In an interesting foreword Lord Phillips of Worth Matravers, the former president of the Supreme Court, criticizes the exposition of the law by the House of Lords, especially in the Folias and the Despina R, as being too uncertain. Lord Wilberforce, who gave the leading judgment in all three of the reforming cases, and who had been counsel in Havana Railways, advocated an approach in contract and tort where ‘damages should be calculated in the currency in which the loss is felt by the plaintiff and which most truly expresses his loss’. In some formulations the word “truly” has been substituted by “justly” but the authors prefer the original formulation.

Arbitration in Malaysia has come a long way since the first edition of Law, Practiceand Procedure was published in 2003. Malaysia completely overhauled its arbitration legislation by enacting the Arbitration Act 2005 (the ‘Act’), based on the UNCITRAL Model Law 1985 and New Zealand’s Arbitration Act 1996. The Act was comprehensively amended again in 2011. In addition, the Kuala Lumpur Regional Centre for Arbitration (the ‘KLRCA’) has revised its rules several times, most recently in October 2013, to modernize its procedures in accordance with international standards and best practices. Among other developments and innovations, the KLRCA launched its expedited ‘Fast Track Rules’ in 2010, introduced a special set of Shariah-compliant arbitration rules (the ‘i-Arbitration Rules’) in 2012, and moved into its spacious new offices with state-of-the-art hearing rooms in the renovated art deco heritage Sulaiman Building in 2014. As a result of these developments, as well as the relatively low cost of conducting arbitrations in Malaysia, Kuala Lumpur has become an increasingly important centre for international arbitration in the Asia-Pacific region. Against this backdrop, the arrival of the Second Edition of Sundra Rajoo’s magnum opus on arbitration in Malaysia is most welcome and timely. It is not merely an update; the book has evolved as much as Malaysia, and can be viewed in many regards as an entirely new work.

The law governing arbitrability of disputes subjectively varies according to the public policy and the legislative mandate of each jurisdiction. In the absence of any legislative insight or any direct ruling of the Supreme Court of India on the arbitrability of intellectual property right disputes, the overall Indian law on the subject stands scattered. While some of the High Courts across the country have had the opportunity to deal with matters requiring the consideration of both arbitration law and intellectual property law, the lack of consistency is apparent. Through this article, the author attempts to pick up the general domestic law on arbitrability of disputes, as laid down by the Indian judiciary, and to chalk out the principles and tests applicable to all kinds of disputes, including intellectual property disputes. Thereafter, the said tests and principles shall be applied to the unique fact situations raised in various kinds of intellectual property matters, in order to test their suitability for adjudication through the process of arbitration. As a product of this process of joining the various scattered dots, a conceivably clearer picture regarding the arbitrability of intellectual property matters shall be put forth.

This article discusses the role of courts and judges in arbitration. Some practitioners want courts out of arbitration, at least, until an award is rendered. Others prefer resort to court as and when the need arises for authoritative judicial pronouncement or decision on points of law, and on complex procedural and interlocutory issues in the course of arbitration. The article clarifies the ‘court’ or ‘competent court’ designated by arbitration law to deal with arbitration matters, and the doctrinal underpinnings of the functions and constraints on the tribunal and court in arbitration proceedings. The author's perspectives on the relationship between arbitration and the court, and some specific concerns in their respective roles in arbitration, are brought into the discussion. Consideration is given to the need to expand the powers of the arbitral tribunal, and the creation of a specialized commercial court of arbitration. The article concludes on an optimistic expectation for expanded arbitral powers to enable the arbitral tribunal the better to deliver justice to the arbitral parties with confidence.