A Harmonised International Commercial and Investment Arbitration Law Code (HICIALC) applied to judicial review of investor-state arbitration disputes: upholding res judicata of arbitration awards and tribunals from undue appeals and annulment due to court intervention

Mary B. Ayad

Research output: Contribution to journalArticlepeer-review

Abstract

A Harmonised International Commercial and Investment Arbitration Law Code (‘HICIALC’), governing MENA-FI investment and commercial contracts and disputes between Middle Eastern governments and foreign investors would resolve serious conflicts that arise due to the inherent nature of Investor-State agreements. An economic background of the MENA in light of the benefits of foreign investment will be discussed and implications for foreign investors will be given. It will be shown that arbitral award enforcement is an important contributor to the economic development of the MENA. The question of state intervention in trade is implicated herein when courts conduct judicial review of arbitrations that lead to the prevention of the enforcement of arbitral awards or encroach on arbitral tribunal jurisdiction. Drafting a HICIALC that integrates general principles of law from civil, common and sharia law, allows the central problem of arbitral award enforcement facing investors party to international commercial or investment arbitrations in the MENA, to be settled in a balanced and fair way for both sides allowing economic value to both the state and the investor. Relevant regulatory clauses taken from each of these aforementioned areas of law can be drafted into a new HICIALC. A HICIALC can resolve the weaknesses inherent in these laws when dealing with MENA-FI arbitrations. Several related and overlapping areas of law, particularly those that deal with oil, gas law, and energy law, international commercial arbitration law, international investment arbitration law, foreign investment law, and the law governing regulate these types of contracts when in dispute and can benefit from a HICIALC instrument for a number of reasons not least of which, because many oil producing nations are located in the MENA.
Original languageEnglish
Pages (from-to)190-210
Number of pages21
JournalInternational trade and business law review
VolumeXV
Publication statusPublished - 2012

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