Arbitration proceedings under international regime - an overview on the Albanian legislation

• Author: Artan Spahiu
• Position: Economics and Law' Department, Faculty of Economy, 'A. Xhuvani' University, Elbasan, Albania
• Pages: 12-30

Arbitration proceedings under international regime

an overview on the Albanian legislation

Lecturer Artan SPAHIU

1

Abstract

In recent years, globa lization has br ought the spirit of brea king down cultural and

social barr iers between people and par ticular ly ha s accelerated communication and

economic cooperation between states. In this context, legal issues regulating these r elations

can not remain within na tional fra meworks but have r eceived more a nd more an

internationa l prospective. A clear example of this context is the international commercial

arbitr ation.

The great incr ease of the international trade and companies investment in foreign

countries is associa ted with the tendency to transform the internationa l commercial

arbitr ation into a mechanism used increa singly to settle disputes arising from these

relationships.

Through this paper , highlighting the main features of interna tional commercial

arbitr ation will be pr esented a comparative overview between international lega l

framework and domestic pr ovisions of the Albanian legislation, governing the arbitration

proceedings. In this way, will be presented the problematic issues which a re addressed by

the domestic legal framework in this a rea, a s well as the necessity for eventual changes.

Adoption and implementation of legal instruments, which provide contemporary

improvements of ar bitration institute, in a ccordance with t he internationa l legal

framework, will be a good service to the integration pr ocess of the Albanian economy.

Keywords: ar bitra tion, interna tional, procedure, Albania, legislation.

JEL Classification: K41, K33

Introduction

The international arbitration advantages in an open trade

International arbitration is a consensual way or means by which

international disputes can be definitively resolved, pursuant to t he parties’

agreement, by independent and non-governmental decision-makers, which produce

a final decision, legally binding and enforceable through national courts2. It can

also be defined as a process by which a dispute or difference between two or more

parties as to their mutual legal rights and liabilities is referred to and determined

judicially and with binding effect by the application of law by one or more persons

(the arbitral tribunal) instead of by a court of law3. Whereas the international

commercial arbitration is a means by which the disputes arising out of

1 Artan Spahiu, "Economics and Law" Department, Faculty of Economy, "A. Xhuvani" University,

Elbasan, Albania, artan_spahiu@yahoo.com

2 Gary B. Born, Interna tional Commercial Arbitration in th e United States: Commentary and

Materials, The Netherlands: Kluwer law and Taxation Publishers, 1994, p. 1.

3 Halsbury’s Laws of England (Butterworths, 4th edition, 1991) para 601, 332.

Juridical Tribune Volume 2, Issue 2, December 2012

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international commerce are settled pursuant to the voluntary agreement of the

disputing parties, through a process which is different from the judicial process of a

national court. The object is to obtain a fair resolution of disputes by an impartial

tribunal without unnecessary delay or expense.

Arbitration is only an alternative to litigation and it does not replace the

judicial machinery in all aspects, rather it co-exists with it.

4. There is a principle in

the heart of this method, which has been described by Mr. Michel Gaudet5,

honorary president of the International Court of Arbitration at ICC: "The purpose

of arbitration is not to provide from the relevant law a decision against parties

involved in the dispute, but to clarify, together with the parties, what should

be done in a given situation, to achieve justice in collaboration". The arbitration

method creates understanding between the parties to the dispute, without leaving

trace of intolerable bitterness behind6.

Above all International Arbitration avoids the difficulties and uncertainties

created eventually by the submission to the jurisdiction of the court of another

country. When the parties come from different political or legal systems, there is

mistrust of the underlying substantive law, mistrust of the procedural fairness of

the forum where that law is to be invoked and mistrust of the enforceability of

judicial or arbitral decisions. As a transnational tool for dealing with conflict,

international arbitration is a way to create trust between foreign entities and their

local business partners, even in the face of vastly different legal systems and laws.

Arbitration is a way to resolve disputes according to internationally accepted

norms, promising a fair and just process following widely understood due process

norms7. The popularity of arbitration as e means for resolving international

commercial disputes has increased significantly over the past several decades8.

Number of cases resolved, for example from the world’s leading international

arbitral institution – the International Chamber of Commerce (ICC)9 – is large

enough to justify the statement that actually judicial system has a worthy opponent.

4 Angualia Daniel, The r ole of domestic courts in International Commercial Arbitration, p. 5.

(the document is available online at: http//www.ssrn.com/abstract=1674760).

5 Former Chairman of the ICC International Court of Arbitration.

6 A. J. van den Berg, International Arbitration and National Courts: The Never Ending Story.

Permanent Court of Arbitration. International Bureau, International Council for Commercial

Arbitration. Kluwer Law International, 2001.

7 Lucy V. Katz, How Internationa l Arbitration Bridges Global Markets in Transition Economies,

“CPR Institute for Dispute Resolution”, vol. 22, no. 9, October 2004.

8 Gary B. Born, I nterna tional Commercial Arbitration in t he United States: Commentary and

Materials, The Netherlands: Kluwer law and Taxation Publishers, 1994, p. 7.

9 The International Court of Arbitration was established in 1923 as ICC’s arbitration body.