المساعد الشخصي الرقمي

مشاهدة النسخة كاملة : Arbitration Between States and Individuals



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11-09-2012, 10:54 PM
Arbitration Between States and Individuals


Since the end of the second world war, the practice has developed of arbitration between states and private individuals. A brief reference to it will be made here, since it will be dealt with in move detail in another part of this study . on the one hand these disputes do not concern international public law . on thr other hand, the state frequently tries to avoid being placed on the same footing as the other litigant and tries to obtain recognition of its sovereign prerogatives even in a private disputes

The first arbitration of this type arose from agreements, containing an arbitral clause, entered into between a state an oil company. It has been questioned whether these contracts come under domestic or international law; some scholars have referred to 'quasi-international law' in this connection
These arbitrations were followed by others concerning commodities or larg supply or construction contracts, or investments by traders in another state

In this respect international practice has consequently developed sophisticated contracts which
frequently provide
a) a choice of law by which the parties avoid the contract being governed, in whole or
in part, exclusively by the law of one of parties to the contract
b) a stabilization or unchangeability clause by which the parties avoid the state validly changing unilaterally its duties or rights under the contract by modifying its legislation
c) a clause providing for international arbitration, by which the parties avoid future disputes being decided by the courts of one state

In spite of this, the applicable law is not always clearly defined in contracts between states and private individuals. In this situation the arbitrators are frequently in difficulty since they cannot ignore the fact that one of the litigants is a sovereign state and must also take into account that are dealing with commercial agreements