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The Compass and the Code: Doctrines Shaping International Arbitration

International arbitration, a cornerstone of global commerce, facilitates the settlement of disputes between parties across borders. Unlike litigation in national courts, international arbitration relies on a unique set of principles and doctrines that have evolved. These doctrines serve as a compass, guiding the arbitral process towards fairness, efficiency, and predictability. This article delves into some key doctrines shaping the landscape of international arbitration, exploring their origins and ongoing discussions.


Competence-Competence: The Power to Decide Jurisdiction (Origin: Early 20th Century)

The doctrine of competence-competence empowers the arbitral tribunal to decide its jurisdiction. In essence, the tribunal determines whether it has the authority to hear the dispute based on the arbitration agreement between the parties. This principle arose from the need to avoid a situation where a court could potentially undermine the chosen dispute resolution mechanism by questioning the tribunal's jurisdiction. The doctrine promotes party autonomy, allowing parties to choose arbitration and entrusting the tribunal with the initial assessment of its competence.

The Debate and Refinement: While widely accepted, the scope of competence-competence has been subject to some debate. Can a tribunal decide on its jurisdiction even if the very existence of the arbitration agreement is disputed? The prevailing view grants tribunals this power, further strengthening their autonomy. However, courts may still intervene in exceptional cases, such as where the arbitration agreement is demonstrably fraudulent or null and void.


Separability: A Shield for Arbitration Agreements (Origin: Mid-20th Century)

The separability doctrine separates the validity of the arbitration agreement from the underlying contract. Even if the main contract is deemed invalid (due to illegality or lack of formation), a valid arbitration agreement within that contract can still empower the tribunal to proceed with the arbitration. This doctrine emerged to prevent parties from using challenges to the main contract as a tactic to derail the arbitration process.

The Nuances and Limitations: While separability strengthens arbitration agreements, it is not absolute. If the invalidity of the main contract fundamentally affects the arbitration agreement itself (e.g., the subject matter of the dispute no longer exists), then the separability doctrine may not apply. Additionally, some national laws impose limitations, allowing courts to refuse to separate the arbitration agreement if doing so would violate public policy.


Pacta Sunt Servanda: The Sanctity of Agreements (Origin: Roman Law)

This Latin phrase translates to "agreements must be kept." In the context of international arbitration, it emphasizes the sanctity of the arbitration agreement. Parties are bound by their agreement to submit disputes to arbitration, promoting predictability and upholding the chosen dispute resolution mechanism. This principle has its roots in Roman law and reflects the fundamental notion of contractual obligations.

The Exceptions and Challenges: Despite the strong emphasis on pacta sunt servanda, there are exceptions. The public policy exception allows a court to refuse to enforce an arbitral award if it is demonstrably contrary to the fundamental public policy of the enforcing state. This safeguard prevents the enforcement of awards that violate basic legal principles. Additionally, certain procedural irregularities during the arbitral proceedings may be grounds for challenging the award.


Public Policy Exception: A Balancing Act (Origin: 19th Century)

The public policy exception allows a court to refuse to recognize or enforce an arbitral award if it is demonstrably contrary to the fundamental public policy of the enforcing state. This doctrine originated from concerns about upholding basic legal principles and preventing the enforcement of awards that violate them. Examples of situations where the public policy exception might be invoked include awards enforcing illegal contracts or those obtained through fraud.

The Gray Areas and Interpretations: Defining and applying the public policy exception is a delicate balancing act. While necessary to safeguard public interests, overly broad interpretations can undermine the finality of arbitral awards. Courts applying this doctrine must ensure they are not simply re-adjudicating the merits of the dispute under the guise of public policy.


Exhaustion of Local Remedies: A Threshold Requirement (Origin: Varied)

The doctrine of exhaustion of local remedies requires parties to exhaust all available legal remedies within the host country where the arbitration is taking place before resorting to international arbitration. This doctrine has its roots in some national legal systems and may be a mandatory requirement in certain circumstances. The rationale behind exhaustion is to allow local courts to address the dispute before international intervention.

The Exceptions and Flexibility: The application of the exhaustion doctrine is not always clear-cut. Exceptions may exist if local remedies need to be more robust or available. Additionally, some arbitration agreements may expressly waive the requirement of exhaustion. The approach to exhaustion also varies depending on the specific arbitral institution and the applicable rules.


Estoppel: Preventing Inconsistent Positions (Origin: Common Law)

The principle of estoppel prevents a party from taking inconsistent positions in the arbitral proceedings. If a party engages in conduct that suggests acceptance of the tribunal's jurisdiction (e.g., participating in the proceedings without objection), they may be estopped (prevented) from later challenging it. This doctrine promotes fairness and avoids situations where parties attempt to manipulate the process.

The Burden of Proof and Strategic Considerations: The burden of proving estoppel lies with the party arguing that the other party is estopped. Parties should be mindful of their conduct during the arbitral proceedings to avoid inadvertently giving rise to an estoppel argument. Strategic considerations also come into play, as parties may choose to preserve their right to challenge jurisdiction while still participating in some initial aspects of the arbitration.


Legal Aid in International Arbitration: A Growing Focus (Origin: Evolving)

While not a strictly defined doctrine, the availability of legal aid in international arbitration is becoming increasingly important. Legal aid refers to financial or other forms of assistance provided to parties who cannot afford the full cost of arbitration. The growing focus on legal aid reflects a concern for ensuring access to justice, particularly for parties with limited resources.

The Challenges and Initiatives: Providing legal aid in international arbitration can be complex due to the high costs involved and the cross-border nature of the disputes. However, several initiatives are underway to address this gap. These include the establishment of legal aid funds specifically for international arbitration, as well as the development of pro bono programs where lawyers volunteer their expertise.


Transparency in International Arbitration: Striking a Balance (Origin: Ongoing Discussions)

The level of transparency in international arbitration proceedings varies depending on the chosen arbitral rules and the parties' agreement. Traditionally, confidentiality has been a hallmark of arbitration. However, there is a growing emphasis on ensuring a fair degree of transparency to promote legitimacy and confidence in the system.

The Different Perspectives and Potential Solutions: Balancing the need for confidentiality with the call for greater transparency is an ongoing debate. Some advocate for increased access to arbitral awards and procedural documents, while others highlight the potential for commercial interests to be compromised. Potential solutions include the adoption of more transparent arbitral rules, the creation of anonymized versions of awards, and the development of mechanisms for limited public access to hearings.



  • Confidentiality in International Arbitration: A Hallmark and a Debate (Origin: Early Development of Arbitration)

Confidentiality is a hallmark of international arbitration, allowing parties to maintain the privacy of their disputes. This can be particularly valuable in commercially sensitive matters. Parties often have a strong interest in keeping the details of their dispute confidential,  protecting their business reputation and trade secrets.

The Call for Reform and Potential Drawbacks: While confidentiality remains important, there are growing calls for reform. Critics argue that excessive secrecy can undermine the legitimacy of the arbitral process and hinder efforts to develop a consistent body of arbitral jurisprudence. Additionally, concerns have been raised about the potential for confidentiality to be misused to shield misconduct.



The doctrines explored in this article serve as a foundation for international arbitration, acting as a compass that guides the process towards fairness, efficiency, and predictability. As the field of international arbitration continues to evolve, these doctrines are constantly being refined and interpreted by tribunals, courts, and legal scholars. New challenges and opportunities will undoubtedly emerge, prompting further discourse and potential adaptations to this dynamic body of principles.

The Ongoing Dialogue: Debates surrounding the scope of competence-competence, the appropriate application of the public policy exception, and the balance between transparency and confidentiality will likely continue. The evolving landscape of legal aid and the increasing importance of access to justice in international arbitration will necessitate innovative solutions.

Looking Ahead: The future of international arbitration hinges on the ability to uphold these core doctrines while adapting them to the ever-changing needs of the global marketplace. Striking a balance between party autonomy, efficiency, and fairness will remain paramount. As international commerce continues to traverse borders, a robust and well-defined set of doctrines will be essential for ensuring the legitimacy, efficacy, and continued growth of international arbitration as the preferred method for resolving international commercial disputes.

  • International arbitration relies on key doctrines like competence-competence, which empowers tribunals to decide their jurisdiction.
  • These doctrines, developed over time, aim to ensure fairness, efficiency, and predictability in international commercial dispute resolution.
  • Doctrines like separability protect arbitration agreements even if the main contract is found invalid.

BY : Fanuel Rudi

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