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The Doctrines of Public Policy and Competence in Investor–State Arbitration

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AbstractInternational commercial arbitration (ICA) and international investment arbitration (IIA), as they are currently practiced in the Middle East and North Africa (MENA) inter alia, cannot be seen in isolation. Long-standing historical forces have brought about both the development of jurisprudence as well as its current problems. In arbitrations in which one party is a MENA State, from the early oil concessions throughout the present, ICA and IIA law and practise have demonstrated that the central problem therein has to do with a conflict of laws. What is proposed herein is that common legal principles found in civil, common and Islamic law, which form part or all of the legal systems in the MENA, can be distilled to create a new ICA law code for adoption in the MENA; a code which addresses many of the doctrinal issues that arise in ICA and IIA proceedings. To this end, this article presents the results of this highly practical research which represents a synthesis of theory and practise.

Affiliations: 1: Macquarie UniversitySydneyAustralia


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