When Arbitrators Facilitate Settlement: Towards a Transnational Standard: Clayton Utz/University of Sydney International Arbitration Lecture (original) (raw)
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International Arbitration: Selected Preliminary Topics
A. International arbitration as opposed to other means of dispute settlement B. The Concept of International Arbitration: definition, composition and international public / private arbitration C. The requirement of consent D. Applicable Law E. The pathology of arbitral awards
Onati Institute Conference on Socio-Legal Perspectives on Dispute Resolution, 2011
This article presents a cross cultural examination of how international arbitrators in East Asian and Western countries view the goal of settlement in international arbitration. The result of a 115 person survey and 64 follow up interviews shed light on the underlying cultural attitudes and approaches to settlement in international arbitration as practiced in diverse regions. The findings indicate that arbitration practitioner's perceptions of the frequency of compromise decision in international arbitration demonstrate a high degree of convergence across regions. At the same time, cultural and socioeconomic distinctions are reflected in varying arbitrator perceptions regarding the arbitrators' role in settlement, whether settlement is regarded as a goal in arbitration and the types of efforts made pre-arbitration to settle disputes. In particular, arbitrators working in the East Asian region regard the goal of facilitating voluntary settlement in the context of international arbitration with greater importance and generally make greater efforts pre-arbitration to settle disputes as compared with counterparts in the West.
Pacific Rim Law & Policy Journal, 2010
Contemporary research on roadblocks and facilitators of settlement has thus far been framed by standard economic modeling and distributive bargaining theories. Each of these frameworks provides helpful insights into those elements that assist or hinder the settlement process. However, each of these models has thus far not examined how particular roadblocks and facilitators of settlement operate in the context of international commercial arbitration proceedings from a comparative cross-cultural perspective. How diverse regions approach roadblocks and facilitators of settlement in the context of the integration of global markets is a new arena for research and practice. To date, most research on international arbitration has focused exclusively on Western models of arbitration as practiced in Europe and North America. While such studies accurately reflected the geographic foci of international arbitration practice in the mid-20th century, in recent years, the number of international arbitrations conducted in East Asia has grown steadily and on par with growth in Western regions. This article presents a cross-cultural examination of how international arbitrators in East Asian and Western countries view the particular factors that help or hinder the settlement process in international arbitration. The result of a 115-person survey and 64 follow up interviews shed light on the underlying cultural attitudes and approaches to perceived roadblocks and facilitators of settlement in international arbitration. The findings indicate that arbitration practitioner's perceptions of the factors influencing the achievement of settlement as well as specific barriers to settlement demonstrate a high degree of convergence across regions. At the same time, regional and socioeconomic distinctions are reflected in varying arbitrator perceptions regarding arbitrator proclivity towards making the first move towards settlement in arbitration, the degree of focus on past facts and legal rights as opposed to exploring creative solutions and orientation toward adversarial procedures.
2023
It is undisputable that dispute does arise from almost every transaction in people's lives. Consequently, court procedures-litigation-have been developed over the years to ensure there is fairness and justice in resolving disputes arising from such transactions. Well recognized and praised at first, however, litigation got to be extremely difficult as it could not protect parties' privacy and ensure confidentiality. Moreover, it became incredibly expensive, consumes time and could not provide for a win-win resolution of disputes among other challenges. Thus, ADR became the hope of a common man and last resort for dispute settlement. Although, it remains unclear if Alternative Dispute Resolution (ADR) is as age long as litigation. Nevertheless, ADR could be said to have been resorted to in order to mitigate, water-down and limit the hardship caused by litigation. Today, the globe is at the sojourn oscillating between the relevance of ADR over litigation and vice versa. Hence, a prerequisite to understand whether expanding the space of Alternative Dispute Resolution are bloated expectations or a matter of time. In this paper, arbitration and international mediation will be discussed starting from their historical background and importance. Also, this paper will further examine whether widening the space of Arbitration, International Mediation and ADR in general are bloated expectations or a matter of time.
This paper is an analysis of international commercial arbitration as it regards its recent practices which mirror the practices and procedures prevalent in litigation. The paper goes further to warn that the protracted practice plaguing international commercial arbitration undermines its basic principles and has led to the upswing of mediation. However, the article concludes on the note that arbitration still remains the best form of dispute resolution mechanism for international business. It further advocates that the providers and users (parties and practitioners) of international commercial arbitration services would need to work together to restore the status of international commercial arbitration.
Beyond Contract - The Case for Default Arbitration in International Commercial Disputes
SSRN Electronic Journal, 2000
The thesis of this Article is that arbitration should become the default mode of resolution of international commercial disputes. In Parts II and III, I discuss what I have identified as the most important arguments against the proposed model, and respond to them. (P) I first address the critical issue of the legitimacy of international arbitrators. In the traditional model of voluntary arbitration, the legitimacy of arbitrators flows from the agreement of the parties. By agreeing to have their dispute settled by way of arbitration, the parties have not only empowered the arbitrators, but also abided by the power that they have conferred on them. In the model that I propose, however, arbitration loses its contractual foundation. Would arbitrators also lose all legitimacy? In the absence of any acceptance of the parties, can adjudicatory power be conferred on private individuals? In Part II, I discuss the comparative legitimacy of courts and of arbitrators to settle international commercial disputes, and find that the legitimacy of arbitrators is not lower than the legitimacy of courts. (P) I then turn to the more traditional critiques of arbitration. Legal scholars have long debated the desirability of private adjudication. Many of them have concluded that its costs outweigh its benefits, and that it is thus undesirable. In Part III, I argue that this critique assumes features of the arbitral process which are peculiar to U.S. domestic arbitration, and which are thus not necessary. I present recent developments in specialized fields of international arbitration and argue that they indeed show that the costs of private adjudication have been overstated. (P) Finally, in Part IV, I build on the conclusions reached in the previous parts and frame the details of the proposed model accordingly. (P) Before discussing the theoretical foundation of the proposed model, however, I begin this Article by sketching the advantages of arbitration over litigation. I show that, in an international context, arbitration is a more suitable mode of dispute resolution, and that extending its scope would actually improve the settlement of international commercial disputes.