Arbitrators as Lawmakers

Author: Dolores Bentolila
Publisher: Kluwer Law International
ISBN: 9789041183545
Published In: May 2017
Format: Hardback , 360 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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Description
Contents
Author

Details
Arbitrators as Lawmakers analyses how arbitrators make rules that guide, constrain, and define the process and substance of international arbitration. Arbitral lawmaking is an emerging topic with the existing literature not providing the needed analysis of legal theory and arbitral practice. This book aims to bridge the gap by explaining the three different stages of arbitral lawmaking – before, during, and after the rule is made: first stage is the situation of the arbitrator and the legal framework governing it; second stage is the process of lawmaking; and finally the third stage is when the consistent arbitral solution is launched to a wider public.

What’s in this book:

This book investigates and responds to the following questions:
- What is the relationship between international arbitration and the law and courts of the seat?
- What is the role of international tribunals in enforcing and controlling investment arbitration?
- What is the scope of arbitrators’ freedom in decision-making?
- What constraints limit arbitrators’ decision-making and contribute to consistency?
- Is international arbitration capable of paying deference to past arbitral decisions?
- Which rules have arbitrators created in procedural and substantive matters?
- What is the role and status of consistent arbitral decisions?
- Is there an arbitral legal system?
The answers to these questions are drawn from arbitral decisions made available to the public, clarifying important issues about jurisdiction, procedure, applicable law, interpretation of substantive rules and instruments, and remedies.

How this will help you:

Providing a thorough and multidisciplinary analysis of the actors, process, and outcome of arbitral lawmaking, this study shows how arbitrators create principles of law through consistent arbitral decision-making. As such, it is of immeasurable and lasting value to practitioners, scholars, arbitral institutions, and international organizations worldwide, for all of whom it will not only enable an understanding of arbitral decision-making and arbitrator-made rules but also foster transparency and accountability in the process of arbitral decision-making.

Features:
- Comprehensive analysis of decision making in international commercial and investment arbitration.
- Description of the relationship between arbitration and the law of the seat and international law.
- Extensive treatment of the freedoms and constraints of arbitrators.
- Comprehensive analysis of arbitral awards and decisions on jurisdiction, procedure and merits.
- Systematization of rules created by arbitrators
Benefits:
- Understand international arbitration and the creation of rules by arbitrators.
- Ensure the use of arbitral precedent
- Approach any case before international arbitral tribunals with full awareness of the freedoms and constraints of arbitrators.
- Proceed confidently through the maze of explicit and implicit rules that govern jurisdiction, procedure and merits in international arbitration.
About the Author

Foreword

Preface

List of Abbreviations

PART I The Actors of Arbitral Lawmaking

CHAPTER 1 The Autonomy of International Commercial Arbitration

CHAPTER 2 The Autonomy of International Investment Arbitration

PART II The Process of Arbitral Lawmaking

CHAPTER 3 Arbitrators’ Freedom in Arbitral Decision-Making

CHAPTER 4 Arbitrators’ Constraints in Arbitral Decision-Making

PART III The Product of Arbitral Lawmaking

CHAPTER 5 Consistent Arbitral Solutions

CHAPTER 6 The Status of Consistent Arbitral Solutions

Conclusion

Bibliography

Table of Cases, Treaties, Legislation, Rules and Guidelines

Index
Dolores Bentolila is an associate attorney in White & Case's Geneva office. Before joining White & Case in 2015, Dr. Bentolila represented private and governmental clients in arbitrations conducted under the ICSID Convention, the ICC Rules and the UNCITRAL Rules, and assisted legal experts and arbitrators in high profile arbitrations in the oil sector. Dolores Bentolila holds a PhD and a master degree in international law of the Graduate Institute of International Studies, Geneva, and a law degree of the University of Cordoba, Argentina.