Search In this Thesis
   Search In this Thesis  
العنوان
دور التحكيم الإلكتروني الدولي في منازعات التجارة الدولية /
المؤلف
إسماعيل، هشام سعيد.
هيئة الاعداد
باحث / هشام سعيد إسماعيل
مشرف / سيد أحمد محمود
مشرف / أبو العلا على أبو العلا النمر
مناقش / أحمد قسمت الجداوي
تاريخ النشر
2014.
عدد الصفحات
422 ص. ؛
اللغة
العربية
الدرجة
الدكتوراه
التخصص
قانون
تاريخ الإجازة
1/1/2014
مكان الإجازة
جامعة عين شمس - كلية الحقوق - القانون الدولي الخاص
الفهرس
يوجد فقط 14 صفحة متاحة للعرض العام

from 422

from 422

المستخلص

The Electronic Arbitration phenomenon may be deemed to one of the most significant legal modern phenomena, in which the most appropriate mechanism among others is discovered to face e-commerce disputes and its transactions growth, as the traditional courts failed to settle disputes, resulted from using electronic means in the commercial transactions due to several difficulties; includes: how to determine the jurisdiction of any of these courts over such disputes, the scope of this jurisdiction, the difficulty with determining which act is applied on and recognition and enforcement of judicial judgments.
The international commerce market has achieved tremendous development in area of commerce, especially the electronic that takes place among these parties who are usually subject to spatial and cultural divergence and legal systems differences. The main reasons for this commerce to be developed are speed and ease of communication and possibility to conclude trade deals among various parties involved in the area of commerce and the financial services and transactions, causing both time and cost to be saved.
The law has realized the e-commerce developments and followed this development, by framing the legal structure that is necessary to enable the e-traders to be benefited as much as possible from the merits this trade provides. Moreover the UN issued, represented by United Nations Commission for International Trade Law (UNCITRAL) the 1996 model law for the e-commerce, as a guiding law, can be basically benefited from, on issuing e-commerce national legalizations. This law is based on concept of functional theorizing or the functional equivalent, to say, the parity between both electronic writings and paper writings, regarding their functions, this act includes a set of rules and guidelines aim to create a legal environment more suitable to the e-commerce through conceding electronically exchanging information, accepting the electronic messages and conceding the electronic proof. The UNCITRAL issued model act for the electronic signature in 2001, in purpose of conceding the authentication of the signature and indicating the necessary conditions and requirements.
Furthermore, The UN issued in 2005 an international agreement related to electronic letters used in international contracts, in order to establish standard rules to remove the existing legal obstacles facing usage of electronic letters in the global contracts. Many countries issued a special law, regulating the e-commerce.
However, internationally, the electronic arbitration has not received yet the sufficient necessary regulation to its legal structure, although the electronic arbitration has become a virtual reality, as it saves many expenses as a result of usage electronic media through its different phases, such as management the hearings, non-movement from one place to another, conducting the hearing via TV meetings or its likes.
This is what urged us to study this matter, to concentrate on the most substantial difficulty facing applying this system, through highlighting the objective and procedural provisions, starting from concluding the arbitration agreement, reaching the sentencing and its enforcement, by extracting the stable principles of the traditional arbitration, then comparing them to those of the electronic arbitration, depending on many laws and regulations of arbitration centers, particularly rules of the electronic arbitration centers and sectioning this research to a first section includes the legal system of the arbitration and a second one includes an international electronic arbitration sentence and its enforcement.
The very beginning of the electronic arbitration lies in validity of electronic arbitration agreement and taking into account its objective conditions, which are capacity, satisfaction, location and reason, which are found in any contract, adding to its formal conditions, represented in necessity of writing, whether for an arbitration agreement or proving it. The writing is achieved in the electronic arbitration agreement, if it includes written letters or telegrams electronically sent via internet international information network or modern communications that both parties exchanged. United Nations Commission for International Trade Law indorsed on July 7th 2006 that certain UNCITRAL rules of the electronic arbitration are to be amended, regarding both definition and form of the arbitration agreement, as it is stated in article 7/4 that “the arbitration agreement is required to be written via an electronic letter, if the included information are available so as to be referred to later, an electronic letter means any letter addressed by the party using an info message, while an info message means in structure the information created, sent, received or stored via electronic, magnetic or visual means or via similar means, including but not limited, electronic exchanging of the information, emails, telegraph, telex and telegraphic copying”.
Generally, what we reached is that the electronic arbitration does not differ from the traditional one but in the way the arbitration procedures are completed. The traditional arbitration is carried out in a usual way requires parties appearing before the court themselves and exchanging the written documents, while the electronic arbitration is carried out electronically, using modern technology means of exchanging of information and communication.
At the electronic arbitration, a website is to be established for each lawsuit, acting as a file for the lawsuit, through which all information and relevant documents are exchanged, starting from the request for arbitration, including the trial, reaching eventually the verdict. As the arbitration is a special judicial system based on confidentiality, as nobody is allowed to access this website except the two parties, the arbitrator and the secretary, it is invisible for the others using secret code or password given only to those mentioned (parties, arbitrator and secretary). Thus, the lawsuit website became the lawsuit file, wherein all relevant memorandums and documents are kept.
The documents dispatched through the lawsuit website are essentially characterized of being automatically protected once they are sent; this merit is not found in the traditional documents. Nobody can change its content, even the sender. The document sent is turned to be a “protected” non-amendable document, as it still retains its original form, on which it was sent.
Concerning the enforcement of an international electronic arbitration sentence, which is the most significant and accurate phase in the arbitral disputes, the enforcement of an international electronic arbitration sentence is done according to the laws concerning enforcement of the arbitration sentences in the country wherein the sentence is enforced, which is avowed by most of the arbitration systems and by New York agreement of recognition and enforcement of foreign sentences concluded on June 10th 1958, stating upon article 3/1, that the foreign arbitration sentences are enforced “according to the pleadings rules followed in region where enforcement is required, and pursuant to conditions provided in the following articles”.
This study focuses on how to enforce an electronic arbitration sentence in Egypt and to determine the adjective law to enforce the sentence in detail.
At the end of the study, although the electronic arbitration saves a lot of expenses, as it uses electronic means in its several phases, such as management the hearings, non-movement from one place to another, conducting the hearing via TV meetings or its likes, this arbitration has not received the sufficient necessary regulation from countries and authorities, although it has become a virtual reality. It is known that any newly created system, action or innovation should be legalized and based on law. So what abut this considerable means in the area of international commerce, particularly the electronic! The global efforts should be consolidated in the electronic arbitration, by concluding an agreement or issuing a model law by the UN commission for the international commercial law that concerns with regulation the electronic arbitration in order to guide the countries in their national legalizations.
If the efforts exerted to surmounting the obstacles facing using of the electronic arbitration, like regulating the electronic signature, using the electronic mediator and recognition of the electronic documents in proof as well as restricting its conditions, all are helping, so is the model law of the electronic commerce, issued in June 14th 1996. All that helped us in eliminating the obstacles facing the concluding of an electronic arbitration agreement, this elimination is deemed to be the starting point and the light through which parties are go for the electronic arbitration system, as they are achieving their will, by using electronic proposal and acceptance and legalizing this will by putting it in a written format making it proficient after being signed on by them through the modern communication means.
Furthermore, propagating specialized and certified documentation authorities will help in propagating the means of electronic arbitration to settle commercial disputes at the permanent arbitration center, as a duty of these documentation authorities is to confer confidence and tranquility among the parties involved in the electronic arbitration, by documenting all what is relating to this arbitration, concerning the electronic arbitration agreements, the electronic documents and deeds intra-trading between the parties before the arbitrating authority and the arbitration sentence , as well as issuing certificates stating the authenticity of these deeds and documents, beside the signatures therein, after making sure of the authenticity of these deeds and documents and that the signatures are related to their source.
Although the electronic arbitration sentence is sometimes enforced by the parties, sunspot, lest campaigns should be spread, negatively affecting their companies’ reputation and their benefits, the way of enforcement of an electronic arbitration sentence should be regulated by the countries’ law. The arbitrator should take into account, while sentencing, the country law wherein the electronic arbitration sentence will be enforced and the possibility of its enforcement, so that we never have a useless sentence.
Ultimately, we believe that currently there is no anxiety about preservation and safety system of the confidentiality of an electronic arbitration dispute, as these systems are greatly more developed than years ago, and still in development. Besides, arbitration institutions are helped by experts to preserve the lawsuit website and secure the stage of the trial.