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2019, vol. 57, iss. 10-12, pp. 7-22
Arbitration without arbitration agreement: Direct or indirect
University of Belgrade, Faculty of Law + Privredna komora Srbije, Stalna arbitraža, Beograd
Abstract
Arbitration agreement, either independent (compromise) or as a part of basic contract (compromisory clause), represents unavoidable legal concept in the framework of arbitration disputes resolution with independent legal nature and position in relation to the underlying contract. Arbitration agreementhas effect only between contracting parties due to the principle of inter partes contract's effect. Nevertheless, in the occurring conditions, even the constitutiveness of the writing form of this contract (prevailing solution in national and international sources of arbitration law) does not impede the extension of its effects on non contracting parties if certain conditions are fulfilled. In this paper, the author analyzes presumptions of arbitration agreement legal effect with regard to third parties - non-signatories ("arbitration without arbitration agreement"), in the event of commercial arbitrations, as well as the concepts of piercing the corporate veil and group of companies, and finally with regard to portfolio investors in investment arbitrations (owners of direct capital investors to the host country). Finally, in the same context, the author critically analyzes the annulment of the arbitration award by the Serbian judiciary simply invoking non - existence of the arbitration agreement among all participants of the arbitration procedure, as well as to the improper composition of the extended arbitration tribunal, despite the opposite trends of the relevant international arbitration jurisprudence.

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article language: Serbian
document type: Paper
published in SCIndeks: 27/03/2020

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