Policies, Practices, and Protocols for International Commercial Arbitration: A Review

Background

In the wake of the increasing significance of alternate dispute redressal mechanisms as a cost-effective, efficient, facilitating, and hastening mechanism for conflict resolution, to enable a transparent, justiciable system, the policies, practices, and protocols of the ADR in any country context is expedient. Each of the same viz policies, practices, procedures, and protocols need to be studied closely and analyzed to arrive at appropriate inferences. In this chapter, such an effort is attempted.

This chapter is purported to achieve the following objectives:

• 1.

  To analyze the arbitration policies, practices, and protocols of some select countries

• 2.

  To provide a brief sketch of some scholarly literature

• 3.

  To discuss the materials gathered to arrive at appropriate inferences

This chapter is based on the analysis of secondary source materials collated from print and electronic media which are relevant and appropriate for this study.

Previous Research Literature

International commercial arbitration is affected by several factors including the policies of the states in which arbitration takes place, the procedures laid down, and the practices that are followed in the context of the arbitration. Several scholarly studies have been carried out examining different aspects of the policies, procedures, and protocols. A brief sketch of such studies is attempted here.

Examining public policy and international commercial arbitration, three levels of public policy are defined as domestic, international, and transnational (Buchanan, MA; 1988). The Law Merchant or Lex Mercatoria has rules which are common to all or most of the states which are engaged in international trade. Such rules have to be ascertainable (Lando, O; 1985). The effect of party autonomy is significant where the rules and practices are mentioned in international commercial arbitration (Lew, JDM et. al., 2003). There are rules which are most controversial. The roles of mandatory rules in international commercial arbitration decide the outcome of the arbitration especially where the corporate citizens are involved (Barraclough, A,& Waincymer; 2003). Prior to 2020, international arbitration included the treatment of annulment, recognition of awards, and counselling on ethics (Born, GB; 2020). The peculiarity of international commercial arbitration is that their entitlement is tailored to their own arbitration proceedings and needs of international action (Fouchard, P & Goldman, B; 1999). The role and power of arbitrators are based on the strategies and depend on the laws, rules, and guidelines which vary from state to state (Moses, ML; 2017). There is a limited application of the public policy exception in international commercial arbitration which is necessitated with respect to both the parties and not just to one party that initiated the proceedings (Garcia de Enterria, J; 1989). It has been attempted to examine the issues on the ICA scene in recent years and summarised the recent developments in the rules (Craig, WL; 1995). The contention of national public policies on the arbitral process focuses primarily on the survival of ICA (Chukwumeriie, O; 1994). The regime of international commercial arbitration in business practices and strategies has become increasingly complex and transnational (Lynch, K & Lynch, KL; 2003). When engaged in international trade and international exchange, some common core procedural rules can be identified which will be different from national public policy to international public policy. (Kurkela, MS & Turunen, S; 2010).

Arbitration on an international scale is an option for settling disagreements that emerge out of international business deals. When disputing a business transaction on a global scale, one may want to consider using international commercial arbitration as an alternative to going to court. This type of arbitration is governed by the terms agreed upon by the parties involved, rather than by any specific country's laws or procedures. Most contracts include a clause stating that the parties agree to submit any dispute arising out of the contract to binding arbitration rather than to court. At the time of the contract, the parties may also choose to define the applicable law and forum for any legal disputes that may arise.