The Emerging System of International Arbitration: Defining "System"

Article excerpt

I.

The question we are being asked to address is "the emerging system of international arbitration." The important word here is "system." What it connotes is that international arbitration cannot be reduced to being just part and parcel of the legislation of each individual country, but can be viewed as a body of norms sufficiently organized, complete, and effective to qualify as a system.

Some would go as far as saying that international arbitration qualifies as a legal order in its own right. This is what the French Court of Cassation means when it refers to the arbitrator as an international judge. (1) But in order to assure you that this is not merely a Gallicism, I would like to remind you what Lord Wilberforce said in the context of the adoption of the English 1996 Arbitration Act:

   ... I have never taken the view that arbitration is a kind of
   annex, appendix or poor relation to court proceedings. I have
   always wished to see arbitration, as far as possible, and subject
   to statutory guidelines no doubt, regarded as a freestanding
   system, free to settle its own procedure and free to develop its
   own substantive law--yes, its substantive law. I have always hoped
   to see arbitration law moving in that direction.... (2)

It seems to me that, to a large extent, Lord Wilberforce's wishes increasingly reflect reality. As this topic may seem highly abstract, I would like to start with some facts.

II.

The first relevant fact is the existence of an extensive body of rules generated at an international level and governing various aspects of international arbitration. Just to name a few:

--the cornerstone of the international arbitration regime remains the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, now binding on 146 states;

--still from an inter-governmental angle, the works of UNCITRAL merit special attention: the 1985 Model Law on International Commercial Arbitration (amended in 2006), with 66 countries having adopted legislation based on the Model Law; the 1996 UNCITRAL Notes on Organizing Arbitral Proceedings; (3) and currently, the preparation of a legal standard on transparency in treaty-based investor-state arbitration; (4)

--the works of the IBA and the various guidelines it has adopted in relation to international arbitration: namely, the 2004 Guidelines on Conflicts of Interests, the 2010 Guidelines on the Taking of Evidence, and also the IBA Rules of Ethics for International Arbitrators; (5)

--the works of the ILA: Recommendations on Lis Pendens and Res Judicata and Arbitration (adopted at the 2006 Toronto Conference); report on "Ascertaining the content of applicable law in international commercial arbitration" (submitted at the 2008 Rio de Janeiro Conference); or the 2010 report on "Confidentiality in International Commercial Arbitration." (6)

That more and more often parties and arbitrators find the rules applicable in these rules and guidelines illustrates two phenomena. First is the increasing uniformization of arbitral proceedings. An arbitral proceeding will not be conducted any differently by the arbitrators and the parties because it occurs in Mexico City, Beijing, Doha, London, or Geneva. In all cases, the parties and the arbitrators will refer more readily to these international rules and guidelines than to domestic rules followed locally in ordinary court proceedings.

As a result, the debate over the choice between local procedural rules and transnational procedural rules, which was still vivid in the 1960s, now seems completely outdated. The same goes for the debate over the choice of the applicable substantive law which, in the absence of a choice of the law by the parties, seldom finds a solution in the application of the ordinary choice of law rules of the place of the arbitration.

Second, and possibly more importantly, this abundant normative activity (by both international organizations such as UNCITRAL and by private codification) shows the international (if not universal) character and source of the rules that apply in international arbitration. …