The Rise of International Arbitration; Martin Long, Partner at BTG Forensic in Birmingham - a Division of the Leading Specialist Professional Services Organisation Begbies Traynor Group - Analyses the Increasing Prominence of International Arbitration
Byline: Martin Long
The impact of the global economy and the continuing trend of increasing volume, size and complexity of cross-border transactions have served to fuel the demand for international arbitrations as a means to resolving transnational disputes. Even relatively modest size companies are now routinely undertaking business away from the home market which, in the event of contractual dispute, opens up the uncertainties associated with litigation in a foreign court. International arbitration is now the accepted way of dispute resolution between parties to international commercial contracts and allows companies to avoid the national courts in favour of a demonstrably neutral predetermined decision-maker. In particular, international arbitration allows the parties to a contract to agree in advance how matters will be addressed in the event of an unresolved dispute: the choice of arbitral organisation of which there are many, the place of arbitration, the language to be used, the number and selection of arbitrators, the prevailing law and the procedures to be followed. Generally, an arbitral tribunal in a complex commercial matter will be composed of three arbitrators: a jointly or independently determined chairman with each party then free to select one independent arbitrator each. An important factor also is the issue of confidentiality: international arbitrations are private affairs whereas court cases are generally part of public record, although public companies may, of course, be required to disclose proceedings in any event.
International arbitration developed out of domestic arbitration but the procedures and practices relevant to an international arbitration have now evolved to such a degree that demands for this service are often met by a discrete and separate group of professionals.
This is true not just for lawyers but also for the forensic accountants who act as expert witnesses in international arbitrations and are called upon to calculate losses for claim purposes.
I find myself increasingly required to act as an expert forensic accountant in international arbitrations and have been called upon to give evidence in both the International Chamber of Commerce, International Court of Arbitration (ICC) and the London Court of International Arbitration (LCIA), two of the more significant Arbitral Tribunals. The protocols and guidance for experts that have evolved during recent years in the High Court remain relevant as a measure of best practice, but you must not lose sight of the fact that an international arbitration is not the UK High Court and indeed one of the main advantages of an international arbitration is that the parties are not tied to any one country's jurisdictional procedures. …