International Construction Law Review
LOOKING FORWARD IN INTERNATIONAL ARBITRATION
Doug Jones AO1
1. INTRODUCTION
Despite arbitration’s ancient origins, the 20th century witnessed its rebirth, its cultivation in various domestic settings and its ascendancy to a position of supremacy as the preferred method of resolving international commercial disputes. Pausing momentarily to survey the road now travelled, one observes a great many landmarks: early attempts at systematisation through dedicated organisations such as the Chartered Institute of Arbitrators in the UK, the cultivation of a new body of knowledge and its eventual recognition as a distinct legal discipline, the development of global professional networks, the proliferation of arbitral institutions, the creation of an effective international enforceability framework with the passage of the New York Convention of 1958 and prominently, the harmonisation of arbitration laws which followed the passage of the UNCITRAL Model Law on International Commercial Arbitration in 1985. In light also of its judicial endorsement and its commercial success, the evolution of arbitration as a dispute resolution process might on first glance appear to be largely complete.
Yet the environment in which arbitration operates continues to evolve, and in the face of intensifying competition, the process of arbitration cannot afford to stand still. There is a need to remain on the lookout for its shortcomings, and to devise and apply solutions accordingly. To this end, it is intended in this paper to identify some of the challenges which confront commercial and investor-state arbitration, respectively.
This paper commences with a discussion of two new competitors in the world of international dispute resolution – mediation and specialised commercial courts – and how arbitration might respond to these challenges. It is suggested that the practice of innovative case management techniques is an appropriate point from which to start, to secure time and cost advantages. This paper then addresses some of the long-standing criticisms of investor-state dispute settlement and the diversity of approaches to reform that might usefully be adopted, including consideration of the ISDS provisions in two recent investment partnerships, the Trans-Pacific Partnership (“TPP”) and the Transatlantic Trade and Investment Partnership (“TTIP”).
Pt 2] Looking Forward in International Arbitration
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