What Ails International Commercial Arbitration
The International Commercial Arbitration had with time almost become indistinguishable from litigation, so much so that it almost reflected the same process it was deemed to supplant. The baggage on board continued to increase with time and more law, as well as more and more legalese; with severe disputation about applicable law, multi-party arbitrations, agreements in writing, discovery in foreign arbitration, lex mercatoria, among other things. Meanwhile, the mills of arbitration, efficiently that were being run by arbitration journals, magazines, and newsletters, kept grinding. Books on International Commercial Arbitration have grown tremendously in number over the years, in both weights as well size. For instance, the ICCA Yearbook also known as the Yearbook of the International Council for Commercial Arbitration, the Netherlands, February 1999 is extremely informative, but also very bulky in terms of 1320 pages which are bound rigorously in hardcover, richly textured and annotated with the ratio of hundreds of court arbitrations. The ICCA yearbook commenced publication in the year 1976, with a relatively slim volume of 250 pages. Subsequent editions in recent years for example for the years 2015,2016,2017 as well as 2018 each contained an average of 870 odd pages. The current edition of Fouchard, Gaillard and Goldman’s International Commercial Arbitration which was in turn edited by Emmanuel Gaillard and John Savage, Kluwer Law International, the Netherlands contained decisions from all around the world, replete with extracts from, and even references to, scores of international arbitral awards, all of which is extremely rewarding for a lawyer- arbitrators. However, still, the fact of the matter is that there is immense skepticism pertaining to the fact that whether it actually is the function of private arbitral awards to develop international jurisprudence. All that ultimately should matter by the end of the day is that the arbitral tribunal has been able to reach a result that commends itself as being just in the case at hand. I believe that the private nature of arbitration is inconsistent with any law-making function of sorts.
Arbitral has relatively lost that lightness of touch to do with what was characteristic of its early manifestations. Reasoned or even motivated decisions- mostly, concurring and dissenting are not increasingly long and turgid. If private awards were meant for the parties alone as they ideally should be they would be relatively short, the conclusions and primary reasons being presented in a simple and succinct format. However, some of the “players” in international arbitration are increasingly tempted to address a much wider audience with their ultimate work product more often than not finding its way into print. While the hope of creating something that will eventually form part of a body of “legal opinion” ignites an even more elaborate composition supposedly? Often an award will quote or cite passages from other awards rendered in what is essentially stated to be a similar fact situation, ignoring wholly the caution that has been expressed by England’s Lord High Chancellor, Lord Halsbury (way back in the year 1901), primarily to do with the fact that every decision must be read as applicable to the facts proved and not merely as an exposition of the whole law on the subject; that essentially every case in which expressions of law are so to be found is ultimately necessarily qualified and conditioned by its own set of peculiar facts.
Source: The Arbitration Series Volume 2 Harmony amidst Disharmony: The International Framework- Fali S Nariman