New dispute resolution procedures are constantly being devised to meet the needs of an international business community, which increasingly demands a flexible approach to problem solving.
Effective methods of resolving commercial disputes and legal environments that support and reinforce their efficacy, are, indeed, vital ingredients in the oil that lubricates the engine of international trade.
Thus, contract draftsmen contemplating the dispute resolution clause are, today, faced with a panoply of choices, including: early neutral evaluation, dispute review boards, expert determination, mediation, conciliation, adjudication, arbitration, litigation, and any combination of these.
And yet, the great majority of commercial disputes are resolved by discussion and negotiation, by dispute management or avoidance, and with no third-party intervention at all. A significant number – but still a small proportion – end up in some form of assisted negotiation, generally mediation, and only a small minority ever reach a judicial tribunal, whether in arbitration or litigation.
For parties seeking a binding and enforceable determination of their dispute, however, arbitration is more and more frequently the preferred option in a growing number of commercial fields – from IP to IT, from banking to building, from shareholders’ agreements to shipping, and from pharmaceuticals to power projects.
And so the absolute number of commercial arbitrations has grown rapidly over recent years, and continues to grow, bearing witness to burgeoning trade and economic development worldwide. The arbitration practices of many international law firms are similarly expanding, as is the body of those who sit on arbitral tribunals. Even as the caseload of the established arbitral institutions grows, new institutions are regularly springing up to meet the demand, although a majority of arbitrations are still unadministered. State parties are also increasingly submitting themselves to arbitration, both through the arbitration agreements in commercial contracts and through the increasing number of bilateral and multilateral investment treaties.
The enduring and growing appeal of arbitration may be rooted in the longrecognised advantages of party autonomy, enforceability, neutrality, confidentiality, cost-effectiveness and speed. But arbitration also offers the flexibility that the parties require, being founded upon that very autonomy that allows parties to choose their tribunal, the applicable rules and laws and the place of their arbitration.
Some 135 countries are now party to the New York Convention. The UNCITRAL Model Law on International Commercial Arbitration has come into effect in more than 30 jurisdictions, while in many others, effective arbitration laws, though not based directly on the UNCITRAL model, have been enacted.
The support that the New York Convention and these modern arbitration laws provide for cross-border arbitration also significantly contributes to the wide acceptance of arbitration by the international business community. The leading arbitral institutions have been concerned to ensure that their rules and procedures reflect the needs and expectations of that same community.
As in every area of legal practice, but more so in a field so far-reaching in its application, practitioners in international commercial arbitration – be they external or in-house counsel, be they advocate or arbitrator – must continuously update their knowledge and understanding of relevant rules, laws, conventions and procedures.
The very significant number of seminars and conferences, courses and qualifications, books, journals and articles devoted to the subject are testimony to its complexity and fluidity. This book is one that all those who study and/or who work in the field will find a most useful addition to their source materials.
The book sets out, in articulate and succinct fashion, a study of jurisdictions, from Argentina to the United States, comparing the extent to which commercial arbitration is used; laws on arbitration; the institutions most commonly turned to in each jurisdiction; the role of national courts; agreements to arbitrate; questions of arbitrability and separability; the qualification and appointment of arbitrators; party representation; issues surrounding the seat and place of arbitration; evidence gathering; interim measures; and the arbitral award itself, including available recourses from the award and the enforcement of the award.
Other chapters are devoted to studies of the leading arbitral institutions, looking at the history of those institutions, at their organisational framework; the educational programmes that they provide; their administrative charges; and their recommended clauses. Also examined are more specific issues, including the initiation of proceedings; the selection and appointment of arbitrators; the way in which challenges to arbitrators are resolved; how hearings are organised and how awards are dealt with.
The contributors to this book are all recognised leaders in the field, and are most eminently qualified to present balanced and unbiased views on their respective topics.
The objective, in the first edition, was to produce a substantive, multi-jurisdictional, multi-institution desktop reference, which would be a point of first referral for the answers to the questions that most commonly arise for those who practise in the area, for those contemplating the insertion of an arbitration clause and for general counsel.
If the first edition went a long way to meeting that objective (and I believe that it did) this second, updated and expanded, edition promises to establish Arbitration World as a must-have work of reference for all those involved in the many facets of the world of arbitration.
January 2006 London
