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A Call for Rethinking International Arbitration: A TWAIL Perspective on Transnationality and Epistemic Community

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• Published: 18 May 2023
• Volume 35 , pages 405–424, ( 2024 )

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• Mansour Vesali Mahmoud 1 &
• Hosna Sheikhattar   ORCID: orcid.org/0000-0002-7616-6862 2  

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Despite the increasingly diversified discourses in international commercial arbitration, this device of socio-legal regulation remains a relatively under-theorized subject. In particular, far too little attention has been paid to analyzing international commercial arbitration through critical approaches such as Third World Approaches to International Law (TWAIL). TWAIL is broadly understood as a methodological reorientation in international law by highlighting the historical links between the foundations of this field of law and the history of capitalism and imperialism as well as the colonial and Eurocentric legacies in the structure and operation of the current international legal regime. With this in mind, two fronts in international commercial arbitration invite a reexamination through a TWAIL perspective and by drawing on the concept of hegemony. One front is the transnational account of arbitration, and the other one is the epistemic community of arbitration. By examining these two notions through a narrative of hegemony of Western legal traditions, we posit that any effective attempt at redefining or reforming arbitral governance structure towards sustaining diversity requires a deeper understanding of historical and current world power structures and creating a vision for the prospect of dehegemonization.

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Introduction

Far too little attention has been paid to analyzing international commercial arbitration from the critical perspectives, including the third world perspective. This gap is worth investigating because of the increasingly significant role of international commercial arbitration in global governance. In particular, the liberal orientation of contemporary global governance is under the influence of arbitration as a significant and predominant mode of dispute resolution in cross-border trade (Muir Watt 2020 ). A third world perspective, which criticizes the liberal world order (Bianchi 2016 ), has the potential to bring new light to the critical analysis of international commercial arbitration as a method of international dispute settlement.

There is no coherent and distinctive definition of the Third World Approach to International Law (TWAIL) because it involves distinct strands influenced by critical legal theory and other inclinations (Bianchi 2016 ). Notwithstanding the diversity of TWAIL perspectives and the heterogeneous group of its scholars and activists, TWAIL scholarship is united in its broad opposition to the current global international legal and economic order as well as promoting the development of an alternative normative legal framework for international governance (Mutua 2000 ). Specifically, TWAIL aims to advance a methodological reorientation in international law by highlighting the links between the foundations of this field of law and the history of capitalism and imperialism as well as the colonial and Eurocentric legacies in the structure and operation of the current international legal regime (Chimni 2013 ; Bianchi 2016 ; al Attar 2020 ). The focus of TWAIL has been on different areas of public international law and international economic law (Gathii 2011 ). While public international law is mainly concerned with inter-state relations, international economic law, in its broadest sense, extends to ‘all national and international legal norms that affect transnational movements of goods, services, capital and labor’ (Paul 1995 , p. 609). The broad definition of the latter field of law also covers international commercial arbitration. This poses the question of whether and to what extent international commercial arbitration can be a potential field of study from a TWAIL perspective.

The mainstream legal scholarship of the field of international economic law considers international commercial arbitration as a rule-oriented dispute settlement mechanism, where the influence of ideology or authority is minimal (Chimni 2013 ). Such an assumption can be put into question from a TWAIL perspective, which has a clear interest in bringing to the foreground the power relationships within the international community reflected in legal constructs. Nevertheless, TWAIL scholarship hardly makes specific references to international commercial arbitration as well as its political economy, institutional structures, and substantive impact. This may be partly explained by the fact that elements of politics and power relationships are not self-evidently at play in private law. In contrast, power dynamics have had more presence in investment arbitration debates. Nevertheless, international commercial arbitration precedes investment arbitration. In particular, the historical oil nationalization arbitrations, which have been considered by some Third World scholars as ‘flagrant proof of bias’ in arbitration (Shalakany 2000 , p. 445), were indeed commercial arbitrations involving state parties. Furthermore, international commercial arbitration is also concerned with allocation of powers between national courts and arbitral tribunals. Such attributes as well as growing tendencies to harmonize international commercial arbitration across the globe make this field of law susceptible to a TWAIL analysis.

Notably, the focus of TWAIL scholarship on moral equivalency of cultures and peoples and its rejection of universalization of specific cultures (Mutua 2000 ) is a fertile ground for critically studying international commercial law from the prism of sustainable diversity. Sustainable diversity denotes accepting all traditions of the world and seeing them as mutually interdependent, a perception which in turn enhances the prospect of dispute settlement (Glenn 2007 ). A TWAIL perspective enables a particular conceptualization of international commercial arbitration that elucidates some of the historical roots of lack of sustainable diversity of the arbitral actors and cultures and may ultimately help with remedying the issue. In particular, TWAIL’s attention to the postcolonial nature of international law and asymmetries of power invites a re-examination of how political and commercial power relations are relevant to international commercial arbitration through the advent of constructs and concepts such as transnational law. Relatedly, and from a critical theory perspective, the arbitration system is part of the broader narrative of power dynamics between the global South and North, and its legitimacy is undermined by the fact that it is not representative of the global variety of perspectives (Karton 2022 ). Although such concerns have mainly been raised with regard to investor-state arbitration, they are also relevant to international commercial arbitration. This is because the perspectives of a dominant group within the society can gradually form a benchmark for views on international commercial dispute resolution. In other words, ‘normativity’ within the resolution of international commercial disputes may be shaped by a narrow segment of the society to the exclusion of other perspectives (Karton 2022 ).

The impact of power dynamics and the role of dominant groups in the development of international commercial arbitration and its conceptual apparatus is directly related to the concept of hegemony, which is a central theme of TWAIL scholarship in rethinking the resistance to international law (Rajagopal 2003 ). Inspired by Antonio Gramsci, hegemony is understood as production, reproduction, and mobilization of popular consent constructed by any dominant group by relying upon the confluence between force and moral ideas (Rajagopal 2003 ). Such consent is secured via a process through which the dominant powers exhibit their own interests as universal (Knox 2019 ).

More specifically, Western hegemony denotes a historical and cultural influence of colonialism leading to the dispersal of Western customs throughout the world (Worth 2015 ). As a corollary, Western legal traditions can also be considered as an instrumental part of the hegemony in this sense. For example, European laws used to be extensively deployed in the imperial project and subjecting the colonized territories into foreign political and cultural norms (Roy 2008 ). Notably, colonial laws continue to have contemporary relevance as an instrument of hegemony (Roy 2008 ). The prominent example of such relevance in the commercial arbitration domain is legislations influenced by the colonial laws even after independence (Asouzu 2004 ). For instance, the 1889 English Arbitration Act was extensively adopted by the Commonwealth nations Footnote 1 (Kidane 2017 ). This is while arbitration (and similar institutions) in former colonies was not an unrecognized phenomenon. Footnote 2

Against this background, this paper seeks to revisit transnational autonomy of international commercial arbitration by drawing on the concept of hegemony as viewed from the TWAIL perspective. Accordingly, the central question that this paper attempts to answer is to what extent the transnational authority of international commercial arbitration, as a private method of dispute resolution backed by the imperium of states, is a hegemonized legal institution from a TWAIL perspective.

Before we turn to the main analysis, it is necessary to discuss a methodological point as well as a clarification on terminology. As regards methodology, the line of approach taken in this work is built, mainly, around the concept of hegemony as understood by Gramsci and later borrowed in TWAIL scholarship. Given the counter-hegemonic political economic approach of TWAIL, the analysis also draws on the literature on the political economy of international commercial arbitration to highlight the role of legal constructs in perpetuating existing global power and wealth disparities.

For definitional purposes, we use the term ‘international commercial arbitration’ in this paper to refer to a method of dispute resolution whereby the parties to contracts agree (through arbitration clauses or separate submission agreements) to have their disputes arising from all relationships of a commercial nature, whether contractual or not, resolved by one or more private individuals, i.e., the arbitrators rather than by a court of law. What distinguishes this method of dispute resolution from investment treaty arbitration is the legal frameworks in which they operate. Investment treaty arbitration is based on a standing offer to arbitrate in a treaty between the states concerning disputes related to the breach of the obligations provided in the treaty. Conversely, international commercial arbitration is based on the consent of the parties (of which one may be a state) typically given in an arbitration clause contained in a contract between the parties for resolving disputes arising out of commercial transactions.

Informed by the foregoing considerations, the discussion in this paper is divided into three sections. The first section lays the conceptual groundwork for the central idea of the paper. Sections 2 and 3 address the two selected themes to be explored through a narrative of hegemony in international commercial arbitration briefly developed in the first section. These two themes, namely the claims on transnationality of commercial arbitration and the concept of epistemic community in international arbitration, have been chosen on account of their potential relevance to the debate on how concepts and practices in international arbitration have been shaped under the hegemony of Western legal traditions.

A Narrative of Hegemony in International Commercial Arbitration

Is commercial arbitration truly apolitical.

There is a tendency to distinguish between economics and politics in commercial arbitration debates. It is commonly believed that arbitration is always about resolution of contract disputes arising from property rights, and therefore apolitical Footnote 3 (Shalakany 2000 ). This is based on the prevailing perception that juxtaposes private law as ‘quintessentially legal, rational, scientific, and individualistic’ (Kennedy 2001 ) with public law as political. Nevertheless, as stated by Cutler, the belief that the settlement of international economic disputes requires a ‘depoliticized’ environment through impartial experts is one of the foundational myths of international commercial arbitration (Claire Cutler 2014 ). Most strikingly, international arbitration, from the outset of its modern history, has been complexly intertwined with political dynamics Footnote 4 and, in particular, has been dealing with North-South relations.

A political economy perspective can bring more light to the distinction between private and public law. Indeed, such distinction, driven immensely by liberalist views, has been influential in camouflaging the process through which private law tools and constructs shape and justify power (Muir Watt 2020 ). Interestingly, the public/private distinction underlaid the outcome of arbitrations in the highly influential oil nationalization cases Footnote 5 in the past century, which were essentially private arbitrations in nature (Lim et al. 2021 ). In these cases, the question of applicable law, which until then had been hardly posed in the context of the north-south economic exchange, was particularly highlighted and incited the development of lex mercatoria (Dezalay and Garth 1996 ). Footnote 6

While the liberalist view considers transnational corporations and their law as apolitical and neutral (Claire Cutler 2003 ), it is arguable that lex mercatoria or transnational merchant law, which is often accompanied by private arbitration, is mistakenly regarded as technical and apolitical. Transnational merchant law and arbitration are intertwined in an effort towards possible dissociation of transnational corporations form judicial policies as implemented by state courts. The notion of modern lex mercatoria is in itself inseparable from its political context, which is the preference for a liberal order of international commerce based on the primacy of the freedom of the individuals (Elcin 2012 ). Modern lex mercatoria is developed by a global meritocracy, which has been defined as ‘an elite association of public and private organizations engaged in the unification and globalization of transnational merchant law’ (Claire Cutler 2003 , pp. 180–181). This expansion of the role of private authority is reinforced with the coercive power and support of political authorities. Nevertheless, the shift towards the authoritative function of the global meritocracy is masked by the liberalist ideology, which defines private as apolitical (Claire Cutler 2003 ).

At a more concrete level, the impact of political factors may also appear in the most technical aspects of commercial arbitration. An illustrative example of how the most practical aspects of arbitration might be affected by non-legal considerations can be found in a 1999 ICC arbitration. This case arose pursuant to the dispute settlement provision in a 1996 contract between an Italian company and Addis Ababa municipality, in which Addis Ababa had been fixed as the place of arbitration. However, under the terms of reference, the arbitral tribunal was empowered to decide to conduct hearings at any other appropriate place after consulting with the parties. While the respondent submitted that the appropriate venue was Addis Ababa, the claimant argued that since the majority of the participants in the hearing were based in Europe, it would be more appropriate to hold the hearing in Paris. The tribunal agreed with the claimant’s position and pointed to the significant travel time from Europe to Addis Ababa and the relative difficulty of coordinating travel arrangements for the non-Ethiopian party, counsel, the arbitrators, and the non-Ethiopian witnesses0. Footnote 7 Viewed in a broader context of African relationship with international arbitration, this decision has been heavily criticized by Kidane: ‘The level of disregard for the African party was such that the tribunal refused to go to the seat of the arbitration, instead choosing to write a 82-page justification from Paris on how the parties granted it the discretion to stay in Paris in the Terms of Reference that they all signed’ (Kidane 2017 , p. 62).

The tribunal’s decision on the venue of proceedings becomes more questionable in view of the fact that the tribunal also delayed its decision on jurisdictional objection for two years. Kidane poses the critical question: ‘[w]as the respondent justified in thinking that the arbitrators were not fair for delaying the jurisdictional decision and refusing to get out of Europe for a hearing?’ ( 2017 , p. 62).

With the benefit of hindsight concerning colonial relations, one might be inclined to revisit the rationale underlying the claims as to the depoliticized nature of international commercial arbitration. Viewing arbitration as an instrument of hegemony might bring some light into the debate.

Arbitration as an Instrument of Hegemony

The rise of commercial arbitration in the contemporary era can be traced back to the mid-twentieth century. From the 1980s, the universalizing logic of arbitration and accelerating economic globalization resulted in the expansion of international commercial arbitration (Nottage 2000 ). While this does not mean that the use of arbitration in resolving international commercial disputes was unprecedented, dynamics and characteristics of commercial arbitration in the past – including the colonization period – are not identical with those of the contemporary.

The history of commercial arbitration is indeed closely related to the political developments such as decolonization, and simultaneous economic changes (Kidane 2017 ). Certain prominent theorists have, in the framework of center-periphery analysis, addressed the question as to how the commercial arbitration regime reinforces the centrality of the North, the private and the economic vis-à-vis a periphery of the South, the public and the political (Kennedy 2014 ). Historically, the contribution of arbitration to such centrality, might be, at least in part, attributed to the changed patterns of economic interactions during the colonial period and incompatibility of those patterns with the customary means of dispute resolution in the colonized territories. These historical dynamics have led some authors to characterize modern arbitration legislation as a colonial legacy Footnote 8 (Asouzu 2004 ).

Until not too long ago, Western powers tended to protect the economic and commercial interests of their nationals through their coercive power (gunboat diplomacy) (Miles 2013 ), and the forced unequal capitulation treaties giving European powers jurisdiction over the activities of their nationals in the non-European states justified by inadequacy of local justice systems (Anghie 2005 ). During the colonial period (and even after independence), the colonies were the suppliers of primary products and raw materials to the metropolitan countries. This led to the expansion of international trade to the benefit of European metropolitan countries. For the most part, the commodity associations and exchanges in these countries closely controlled dispute settlement mechanisms in terms of devising the rules and enforcement of (mostly unreasoned) awards through their internal sanctions (Anghie 2005 ).

After the surge of decolonization post-World War II, the capital exporting states, which had lost their dominance over former colonies to a large extent, could not impose their will in commercial relations with the former colonies in respect of applicable law and national court jurisdictions (Lew 2006 ). This decline of influence created a need in Western powers for protection of economic interests of their nationals abroad (Salacuse 2010 ). In other words, the end of formal colonialism was contingent upon the enforcement of a cross-border capitalist economic order for protection of the interests of Western powers in foreign lands (Haskell 2019 ). Accordingly, the expansion of international commercial arbitration has been attributed, in part, to the inappropriateness of the use of coercive power to protect the economic interests of the nationals of Western states (Sornarajah 1991 ).

The abovementioned historical dynamics can explain how political and economic conflicts between the North and South have been translated into business conflicts capable of being managed by international commercial arbitration (Dezalay and Garth 1996 ). The historic oil arbitrations of the last century are a prominent illustration of this point. These influential oil nationalization disputes mark the commencement of the blossoming of international commercial arbitration. Footnote 9 Metaphorically, such arbitrations have been depicted as the opposition of the North and South, multinationals and third-world states, encompassing political stances and private commercial interests (Dezalay and Garth 1996 ).

International arbitration was employed in these oil conflicts as an intermediary to develop ideas based on which contracts entered into between private parties and states were detached from the realm of domestic laws. Notably, arbitral rules and procedures were also imposed and inspired by Western legal cultures. This process was in essence an attempt to legalize political and economic conflicts. Footnote 10 Such a transforming process might be considered as an influential strategy consciously adopted by the Western powers at the time to continue to maintain the hegemony over former colonies and developing countries. Extrapolating the broader context of North-South economic and political relations to the international arbitration can be seen as a continuation and revival of commercial relations between the nationals of metropolitan countries and former colonies in the colonization periods. The major difference between the two periods stems from the fact that decolonization and subsequent abolishment of the capitulation mechanisms no longer allowed the nationals of colonizing powers to dominate the commercial relations by the same instruments.

By the same token, Dezalay and Garth ( 1996 ) attribute the legitimacy of transnational legal order to the setting of a legal scene which revolves around the North-South conflict. Simply put, the transnational legal order is based on the opposition between dominated and established interests. Such an opposition was manifested in the third world countries’ effort to exercise sovereignty over natural resources and thus undermining multinationals’ concessions. The opposition served to produce efforts as to the development of legal rules and practices related to the north-south economic disputes accompanied by efforts directed at the universality of law– lex mercatoria (Dezalay and Garth 1996 ). Beyond the renowned oil arbitrations, arbitration was also an intermediary for a new commercial order Footnote 11 (Dezalay and Garth 1996 ) involving capital exporting and developing states, which juxtaposed North and South. This was (and to a large degree has been) for decades the major pattern of economic relations in the world.

The foregoing analysis is linked to the broader relationship between international law and world power structures. Hegemonic accounts of law are by no means unprecedented in the international law scholarship. Martti Koskenniemi, a prominent international law scholar, has exquisitely depicted the process in which international law appears through the positions of political actors. Such a process takes place through articulating political preferences into legal claims, in the conditions of hegemonic contestation, namely invoking legal rules to which they have ascribed meanings that challenge the contestant view (Koskenniemi 2004 ). It can be argued that shifting to international commercial arbitration as a system swinging between domestic and international legal environment for the settlement of private commercial disputes, is susceptible to be seen as an imposition of Western powers’ own preferences as the total (universal) view Footnote 12 through a hegemonic contestation and legalization. Furthermore, having in mind the developments leading to the initial blooming of international commercial arbitration, the rise of arbitration resulting from the wave of petroleum disputes may also be understood in Gramscian terms. According to the latter, the concept of hegemony describes a condition in which the supremacy of a social group is achieved not only by physical force but also through consensual submission of the very people who were dominated (Litowitz 2000 ).

It is, therefore, arguable that depoliticization of deeply political questions and transposing them into purely technical legal fields has been a scheme constantly employed in commercial and investment arbitration. Indeed, international commercial arbitration –mainly inspired by the Western legal cultures– could be an ideal venue for the time when the use of coercive power was no longer practicable. In principle, designing the structure and function of an international system of private dispute resolution as well as manipulation of legal rules and institutions to the satisfaction of own benefits and objectives is much easier for the main players and stakeholders of the system.

Nevertheless, many commentators claim that bias against the developing countries is not the case anymore; the colonial period has gone, and arbitrations are taking place in many non-European or US venues (Paulsson 1987 ; Lew 2006 ). A hegemonic account of international arbitration casts doubts on such assertions. Having set the scene in that way, we will now turn to the more specific manifestations of hegemony in international commercial arbitration with reference to the two interconnected issues which have been lately the subject of renewed interest: transnationality and epistemic community.

Commercial Arbitration and Claims of Transnationality

Transnational law discourse and arbitration.

Within the context of legal pluralism, the transnational law discourse has been largely widespread with an abundance of academic literature surrounding it. Transnational law in the contemporary age is widely known to have been first proposed by the US international lawyer, Philip Jessup, to include all law regulating cross-border actions or events (Vagts et al. 2014 ). The main directions in theorizing transnational law have been summarized as follows: the mainstream direction comprises a network of treaty bodies, governments, and international lobbying; the second direction adopts a socio-legal and critical approach that understands law as a phenomenon in transnational settings; the third direction benefits from comparative legal studies (Baer 2011 ).

In recent decades, a new lease on life has been given to transnational commercial arbitration in the legal scholarship. The Dijon School of thought, which embraced prominent scholars such as Berthold Goldman, Philippe Kahn, and Philippe Fouchard has been known as the starting point for the discourse on the transnational arbitration regime (Schultz 2011a ). A leading figure in the more recent revival of transnational arbitration debates was Emmanuel Gaillard. Gaillard ( 2010 ; 2020) proposed three distinct structuring representations of international arbitration. The first assimilates an international arbitrator to a judge acting within a single national legal system (monolocal approach). The second relates arbitration to a plurality of national systems which recognize the arbitral award (the Westphalian model). Finally, the third representation, of which he was a strong adherent, attributes the juridicity of the arbitration to a transnational legal order as opposed to national legal orders. In support of the transnational approach, reference has been made, for instance, to the strong perception among arbitrators that they do not exercise a judicial mandate on behalf of any national system, but rather a judicial role benefiting the international community (Gaillard 2010 ). Nevertheless, Gaillard ( 2020a , p. 558) goes on to clarify that ‘the existence of an arbitral legal order does not imply that national legal orders play no role in international arbitration. In fact, the existence of an arbitral legal order relies on the notion that the laws of various states, when considered collectively, make up the common rules of arbitration law in which the source of the arbitrators’ power to adjudicate is rooted’. More specifically, transnational law has been considered capable of being the law applicable to the arbitral procedure, merits of the dispute, and as criteria for defining public policy (Gaillard 2020a ).

When it comes to the arbitral procedure and the interaction between national courts and arbitration, the adoption of UNCITRAL Model Law on International Commercial Arbitration by many jurisdictions has been considered as a dynamic contribution to the transnational commercial arbitration (Gaillard 1995 ). In addition, the New York Convention has been recognized as ‘the normative, collective activity of the States in which the legitimacy and validity of the transnational arbitral legal order is anchored’ (Gaillard 2012 , p. 73).

Regarding the merits of the disputes, it has been pointed out that arbitrators believe that their awards will be more persuasive if they are based on non-state law (DeLy 1998 ). Some authors speak of growing reference by arbitration tribunals to transnational law instead of national law and cite cases in which arbitral awards applying transnational law have been upheld (Ali 2020 ). Similarly, when it comes to public policy exception, it has been argued that arbitrators are only bound by transnational public policy since they have no forum and are not held to allegiance to any state’s public policy (Gaillard 2010 ).

It has been proposed that establishing the content of transnational rules requires the systematic use of comparative law resource (Gaillard 2020b ). According to Gaillard, by engaging in a comparative law analysis, arbitrators seek to find points of convergence in different national laws and ultimately ‘ascertain the existence of a broad consensus among States on the content of a specific rule’ ( 2020b , p. 17). Gaillard attempted to respond to the critiques as to the vagueness or incompleteness of this method: ‘[i]f the analysis of comparative law has not already been carried out, it must be undertaken by counsel, a task that is no more arduous than, say, researching the content of various national laws connected to a dispute’ ( 1995 , p. 226). Nevertheless, this position does not seem to fully dispel the critiques since comparative law might be best understood as a scientific endeavor not particularly directed at identifying concrete solutions to questions of law in real life disputes.

There is an abundance of literature on the use of comparative law in arbitration (Bell 2021 ; Gaillard 2020b ; Karton 2020 ), and some comparatists consider developing common solutions using comparative law method as one of the purposes of comparative law (Siems 2018 ). A recent empirical study focusing on the use of comparative law methods by arbitral tribunals in a small sample of publicly available arbitration awards confirms that the use of comparative law by arbitrators is indeed outcome determinative (Bergolla and Goertz 2020 ). Nevertheless, this study suggests that arbitrators are not rigorous users of comparative law methodology in the classic sense. Rather, they either refer to other arbitral, international, and national cases, or engage in comparative law analysis to determine the substantive law applicable in the absence of the parties’ choice (Bergolla and Goertz 2020 ). Despite the discussion on the prevalent modality of the use of comparative law in international arbitration far from being settled, comparative law has been described as the ‘ethos of the field’, ‘a core aspect of [arbitral] professional culture’ (Karton 2020 , p. 295), ‘a common culture among arbitrators’, and ‘deeply ingrained in modern arbitral practice’ (Gaillard 2020b , p. 35).

Transnationality Claim Viewed in Hegemony Perspective

Conspicuously, TWAIL views international law as a universalization project in order to naturalize the existing order (Knox 2019 ) particularly by maintaining a dichotomy between civilized and universal on one hand, and uncivilized and particular on the other (Anghie 2005 ). As previously pointed out, in Gramscian terms, the formation of a dominant view requires universalization, naturalization, and rationalization through which a dominant group reflects its interests as the common interests. In the same manner, a process of rationalization, universalization, and naturalization must be undertaken in order to exhibit international commercial arbitration laws and practices as ‘common sense’ serving public purposes. Such undertaking of rationalization is performed by the international commercial arbitration community of arbitration lawyers, judges, multinational law firms, and related professionals who promote international commercial arbitration as a public good benefiting the world community (Claire Cutler 2014 ). This process is indeed an integral dimension of the constitution of hegemony through the apparent transformation of the private enforcement of commercial agreements into a matter of public interest and responsibility.

Justifying the promotion of international commercial arbitration as necessary in the age of proliferation of trade and investment relations has made it easier for the international commercial arbitration community to make the arbitration system self-contained to the extent possible, and more and more detached from national legal systems. For this purpose, a trend was started to modernize the national laws on international commercial arbitration. Before that, states’ accession to the New York Convention was encouraged to the extent that it has turned into a success story in international unification of law.

The concept of transnational legal order, like any other law, is constituted by power and reason, and it is also applied through both coercion and a normativity grounded in legal reasoning and process. Accordingly, the actor’s ideal law would reflect their perception of their interest and normative goals. Viewed from this perspective, US and European legal cultures would constitute the main inspiration of the content of transnational law (Halliday and Shaffer 2015 ). In a similar vein, it has been argued that ‘the so-called lex mercatoria Footnote 13 is largely an effort to legitimize as ‘law’ the economic interests of Western corporations’ (Toope 1990 , p. 96). This is in line with a defining characteristic of the TWAIL scholarship which heavily criticizes law making and formation of international law as well as its hierarchical nature. Most strikingly, according to the TWAIL, identification of customary international law is mostly driven by state practice of advanced capitalist nations and the opinions of their scholars (Chimni 2018 ). A similar line of reasoning can be developed with regard to the formation and development of lex mercatoria.

While power and reason are in a constant tension in every legal system (Halliday and Shaffer 2015 ) the modality of such interaction might be contentious with regard to the allegedly existing transnational law and transnational arbitration systems: dynamics of transnational law and arbitration are mostly driven by Western hegemonic power. The comparative law analysis method, which was proposed as a technique to apply transnational substantive rules, is prone to be based on implied superiority of the global North. Conventional comparative law, which originated from Europe around the nineteenth century, mainly employs the law of the global North as the benchmark (Salaymeh and Michaels 2022 ). Consequently, it has been argued that the discipline of comparative law is historically intertwined with colonialism and has been largely employed in pursuit of Western imperialist agendas (Salaymeh and Michaels 2022 , p. 169; Amoo 2018 , p. 318). This context leaves questions as to the adequacy of such a paradigm for our globalized world.

Part of the process of formation of transnational norms, in keeping with the Gramscian concept of hegemony, involves rationalization, universalization, and naturalization. With respect to international commercial arbitration, such a process has always taken place through a constant relationship of learning and teaching:

‘[t]heoretical origin and development of contemporary international arbitration, like most principles of law, has its roots in the dominant Western legal traditions. Western laws and institutions have a long history of transplantation into other societies around the world. The rest of the world has always been in a constant state of learning Western law, and the Western world has constantly been teaching the law. For better or worse, the teacher-student relationship did not end along with colonialism. This hierarchical relationship created the illusion of not only the superiority of the mechanics of dispute settlement, but also justified the economic class of elite arbitrators who do not lack the theoretical sophistry to justify their privileged position’ (Kidane 2017 , p. 287).

Apart from the doubts as to the content of transnational law as the law applicable to the substance of the dispute, prevailing practices and rule making efforts with regard to procedure in international arbitration might also be called into question. Since the 1980 and 1990 s, international commercial arbitration has been to a large extent monopolized by big Anglo-American law firms (Moreno Rodríguez 2018 ). This has led to a phenomenon known as ‘technocratization of arbitration’, which also entails increasing judicialization with a particular emphasis on Anglo-American devices of procedural management (Dezalay and Garth 1996 ; Moreno Rodríguez 2018 ). The general predominance of common law procedural tools in international commercial arbitral practice (Ferreres Comella 2021 ) is accompanied by the specific dominance of American style procedure in rules of evidence. It has been observed that a revolutionary transformation has taken place in the past decades in the context of taking of evidence in international arbitration which requires practitioners to ‘master fundamental precepts of US common law discovery’ (Martinez-Fraga 2009 ). While some authors speak of the development of a standard arbitration procedure as a set of arbitral rules having the merit of merging different procedural cultures (Koffmann-Kohler 2003 ), an American commentator, despite noting that Americanization of arbitral procedure is ‘too much to claim’, observes that:

‘the trend in international arbitration is to move towards the American style of litigation. For example, procedural disputes have multiplied, jurisdictional objections are common, and cross-examination is prevalent. While American style discovery remains anathema, the limited discovery procedure discussed in Article 3 of the International Bar Association Rules of Evidence has become commonplace. International commercial arbitrations also permit the interviewing of witnesses, which was traditionally considered unethical. Furthermore, there are many additional procedural issues that have been introduced by American lawyers into international commercial arbitration in recent years’ (Bergsten 2006 , p. 301).

Epistemic Community in Commercial Arbitration

The concept of epistemic community.

The concept of epistemic community was first developed in international relations (Haas 2008 ) and refers to ‘a network of professionals with recognized expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue-area’ (Haas 1992 , p. 3). Members of such–often transnational–communities share a common set of normative beliefs and enjoy an authoritative claim to policy-relevant knowledge within their field (Haas 2008 ). The distinctive traits of epistemic communities from other types of groups active in policy making are in particular ‘the socialized truth tests and common causal beliefs’ (Haas 2008 ). The existence of such internal criteria for validating knowledge provides epistemic communities with a reputation for impartial expertise (Bianchi 2020 ).

A Critique of Epistemic Community in International Commercial Arbitration

As one of the main tenets of the TWAIL, knowledge production in international law has been called into question. ‘Since TWIAL aims at challenging the hegemonic structures, it must also do so regarding the production of knowledge itself and challenge where and how knowledge is produced and valued’ (Justin Bendel 2021 , p. 411). Knowledge production and practice shaping in international commercial arbitration may be viewed along similar lines. The international community of arbitral scholars and practitioners has been characterized as an epistemic community (Dezalay and Garth 1996 ; Lynch 2003 ; Kidane 2017 ). This concept can be employed to explain the control over and dissemination of knowledge and information (Lynch 2003 ) within the field of international commercial arbitration.

Significantly, the scholars of the field of origin of the concept of epistemic community have put forward that this community ‘should not be mistaken for a new hegemonic actor that is the source of political and moral direction in society. Epistemic communities are not in the business of controlling societies; what they control is international problems. Their approach is instrumental, and their life is limited to the time and space defined by the problem and its solutions’ (Adler and Peter Haas 1992 , p. 371). It is indeed questionable whether the epistemic community of international arbitration has remained within this defined scope of activity.

The epistemic community in international commercial arbitration is said to be originally composed of mostly European academics, judges and barristers, who could act as arbitrators due to their high statuses (Dezalay and Garth 1996 ; Lynch 2003 ). Notably, Dezalay and Garth ( 1996 ) borrow the concept of ‘symbolic capital’ from Bourdieu to explain the significance of elements such as career path, expertise, social class and education in the market for international commercial arbitration.

It has been argued that the professional community of arbitrators has gradually gained authority through promoting treaties on enforcement of commercial arbitral awards and thereby, commercial interests of multinationals have secured greater representation in arbitral proceedings, and at the same time, national judiciaries have been disempowered (Kennedy 2018 ). Some scholars point out that powerful transnational businesses have circumvented the states’ coercive powers through transformation of the law enforcement mechanisms, for instance by the use of arbitration to scrutinize the states exercise of regulatory power (Pistor 2019 ). Pistor (2019) mentions New York Convention, the 1966 Washington Convention (ICSID), and the interpretative tools contained in the 1969 Vienna Convention on the Law of Treaties Footnote 14 as the pieces of the puzzle of such transformation of law enforcement mechanisms. Indeed, as a global community with a particular interest and expertise in legitimating arbitration, the arbitration community has shaped its social rules and norms. These community-specific norms guide the behavior of the members of the group in carrying out their tasks. One prominent example of such a process is the development of common interpretive policies which influence the meaning and application of legal rules (Schultz 2011b ).

More specifically, the participants in the epistemic community have been able to influence policy making in international commercial arbitration at national and international levels (Lynch 2003 ). Using the terminology of Katharina Pistor ( 2019 , p. 162), these legal experts are ‘the masters of the code’ who ‘actively fashion new law’ and they are ‘central to the coding of capital and distribution of wealth in society’. The masters of the code, regardless of their ethnic background, are often trained at Western elite law schools and are later employed by top law firms (Pistor 2019 ). Indeed, despite attempts to address ethnic and gender diversity of key players in international arbitration, teaching and training in international arbitration law is predominantly shaped by a Western outlook. Footnote 15

Furthermore, many of these experts employ scholarly work as a channel of learning and communication, which makes their role as the value providers of the social field of arbitration even more explicit (Schultz and Niccolò Ridi 2020 ). These players have a clear collective interest in the protection of the industry of arbitration. This collective interest creates incentives for producing studies that protect the status quo or advocate the expansion of the field.

The phenomenon of the epistemic community of arbitration and its authority is closely linked to the transnational law discourse in arbitration. In arbitration a special recognition and value is given to those who adhere to the universality of law (Dezalay and Garth 1996 ). Specifically, the development of transnational norms is mainly furthered and advocated by the recognized community of scholars and practitioners of arbitration. Certainly not to be overlooked is the authority attached to the label of transnational law. By granting the status of ‘law’ to a subset of norms, we empower certain individuals and institutions as law makers and thus redistribute political power (Schultz 2014 ). Simply put, characterization of a regime as law results in the superiority of the normative power of the chosen regime over all other social or moral norms. Affixing the label of law to certain norms in the legal academic discourse, can orient practical behavior and ultimately translate into real power for those who generate norms to be regarded as law (Schultz 2017 ). Significantly, theorizing about transnational law in arbitration can be used to advance the interests of the epistemic community in the protection of the industry of arbitration, which in turn is arguably tied to the interests of the global capital market.

Historical and contemporary world power structures cannot be overlooked in critical studies of international arbitration. This paper has sought to demonstrate that while international commercial arbitration is commonly viewed as a meeting point and place of convergence for different legal cultures, Western hegemony is deeply ingrained in its formation and development.

Although discussions regarding gender and ethnic diversity in arbitration have dominated research in recent years, the historical roots of international commercial arbitration in colonialism and imperialism and its relationship with lack of diversity of the actors in this field have remained relatively unexplored. Yet the recognition of Western hegemony embedded in modern international commercial arbitration serves as a first step towards enhancing inclusivity and sustainable diversity in this field. Sustainable diversity of international commercial arbitration presupposes the identification and embracing of all potential actors and legal cultures. This concept underpins the acceptability of commercial arbitration as a central element of the legal order of contemporary global governance. Such centrality would be faced with legitimacy challenges if marginalized cultures and actors continue to be overlooked through a hegemonized construction of the legal order of global governance.

We posit that any effective attempt at redefining or reforming arbitral governance structure requires an understanding of the hegemonic account of arbitration with the aim of sustaining diversity in international arbitration. Particularly, in a field of law where prominent theorists are often also practitioners, it is crucial to revisit, from a Third World perspective, the historical and political power structures that reinforce the status que of the field. For this purpose, two of the main theoretical components of the international commercial arbitration literature, which also carry practical implications, were critically explored. More specifically, an inquiry into the influence of hegemony of Western legal cultures and communities was the focus of the exploration of transnational authority and epistemic community of arbitration.

There is a persuasive argument that the transnational authority of arbitration has been shaped and developed under the hegemony of Western legal traditions. Further, both the demographics of the epistemic community of arbitration and their normative convictions reinforce this hegemony. As a result, even parties from developing countries often have a preference for counsel and arbitrators from Western countries. A corollary to these observations is that revisiting the transnationality and epistemic community of commercial arbitration and envisaging the prospects for dehegemonization is essential in the future perspective of the agenda of debates on sustainable diversity in international commercial arbitration.

Indeed, dehegominizing international commercial arbitration requires a concerted effort from a range of stakeholders, including governments, arbitral institutions, and legal practitioners to promote greater inclusivity for a diverse range of legal traditions and cultures. For instance, growing engagement from the global South through regional arbitral institutions and participation in soft law design can provide a counter-balance to the current hegemonic position of international commercial arbitration. In addition, leading textbooks and treatises written from the perspective of underheard legal systems in international commercial arbitration literature may also contribute to challenging the monopoly of prevalent national legal systems in international arbitral procedures and practice.

In conclusion, this article is a starting point, rather than an endpoint, for rethinking the discipline of international commercial arbitration through the TWAIL perspective. We admittedly do not claim that the current regime of international commercial arbitration as a means of global governance must be wholly transformed. This paper is rather an attempt to call for further inquiry into the subject in order to identify and substantiate the potentials for reform, and consequently remedy the grounds upon which the existing order of the international arbitration has been premised, with the prospect of furthering sustainable diversity in international arbitration.

Change history

04 august 2023.

In the original publication of the article, “(Pistor 2019). Pistor (2019)” was converted to “(Pistor 2019)”.

On the influence of colonial arbitration laws on Southeast Asia see: (Schaefer 2000 ).

For example, in Africa, there was a long-standing tradition of customary arbitration, which had been largely marginalized by colonization (Kidane 2017 ; Asouzu 2004 ). Arbitration-like structures were also used among Parsis in India during the colonization period. (Sharafi 2014 ).

Rejecting the institutional bias (namely configuration of arbitration to the satisfaction of economic interests of the North) and doctrinal bias (namely applicable law configuration), Shalakany ( 2000 ) observes that disciplinary bias accounts for favoring economic interests of the North in arbitrations (particularly those involving state contracts between North and South) through a public-private distinction and apolitical representation of the private sphere coupled with the depoliticization of contract law.

The colonial period has been highlighted in the recorded history of commercial arbitration in many parts of the world, e.g. Africa and Asia, through the import of the use of commercial arbitration by Europeans into the colonized regions or otherwise (Born 2020 ).

Oil nationalization cases generally refer to cases in which interests and assets Westen petroleum companies had acquired pursuant to concession agreements were nationalized by the sovereign party subsequent to which, petroleum companies resorted to arbitration agreements in those concession agreements.

See 1.b below.

Salini Costruttori S.P.A. v. The Federal Democratic Republic of Ethiopia, Addis Ababa Water and Sewerage Authority, ICC Case No. 10,623/AER/ACS, paras 48–49, 6.

This was a consequence of exporting laws in different forms from colonizing States to colonized countries. ‘Imperialism was not only about military conquest, but also about spreading the legal system of the European States to the colonies they created in Africa, Asia, and the Americas.’ (Pistor 2019 ).

Dezalay and Garth ( 1996 ) argue that ‘the petroleum disputes were founding acts. They made arbitration known and recognized. The importance of financial, political (the definition of colonial relations), and legal (the relationship between sovereignty and the respect of contractual obligations) stakes incited a certain number of important actors from the legal field (high judges, noted practitioners and academics, leading law firms) to become interested and to invest in this mode of dispute resolution. The efforts and intellectual activity that they deployed for resolving these new, exceptional conflicts in a legal manner served to construct the minimum base of knowledge necessary to build a field of practice.’

Dezalay and Garth ( 1996 ) also observe the process of translating the economic conflicts to arbitration as a gradual legalization.

As a significant component of the new commercial order, arbitration facilitated the trade between East and West because domestic courts of each side were not trusted by the other side (Hale 2015 ).

This is also in line with the Gramscian perspective under which, ‘the establishment of a ruling worldview requires the mechanisms of universalization, naturalization, and rationalization. By universalism, the dominant group manages to portray its parochial interests and obsessions as the common interests of all people.’ (Litowitz 2000 ).

The term lex mercatoria has been used interchangeably with transnational rules. However, it has been suggested that the concept of lex mercatoria emphasizes on the content of these rules by suggesting that these rules are specifically tailored to the merchant community. The term ‘transnational rules’, on the other hand, focuses on the sources of these rules and implies that such rules originate from national law systems (Gaillard 1995 ).

Mainly, Pistor ( 2019 ) points to the provision of Article 27 of the Vienna Convention according to which, a state may not invoke the provisions of its law as justification for its failure to perform a treaty.

In his study of arbitration through the prism of sociology, Emmanuel Gaillard ( 2015 ) sketches different social actors within the field of arbitration. Value providers are a category of actors that provide guidance as to the development of the field. Among the value providers are professional and academic institutions. Most of these institutions are based in Europe and North America.

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Vesali Mahmoud, M., Sheikhattar, H. A Call for Rethinking International Arbitration: A TWAIL Perspective on Transnationality and Epistemic Community. Law Critique 35 , 405–424 (2024). https://doi.org/10.1007/s10978-023-09344-7

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Article Contents

I. introduction, ii. the role of arbitration in the establishment of international commercial courts, iii. the arbitration features of international commercial courts, iv. the limits of ‘arbitralization’, v. conclusion, acknowledgements.

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The ‘Arbitralization’ of Courts: The Role of International Commercial Arbitration in the Establishment and the Procedural Design of International Commercial Courts

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Georgia Antonopoulou, The ‘Arbitralization’ of Courts: The Role of International Commercial Arbitration in the Establishment and the Procedural Design of International Commercial Courts, Journal of International Dispute Settlement , Volume 14, Issue 3, September 2023, Pages 328–349, https://doi.org/10.1093/jnlids/idad007

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International commercial arbitration is the most preferred dispute resolution method in cross-border commercial disputes. It has been, however, claimed that arbitration has lost its flexibility by becoming increasingly formal and by incorporating litigation practices. In academic literature, this trend has been termed the ‘judicialization’ of international commercial arbitration. This article argues that while arbitration is becoming progressively judicialized, international commercial courts evidence an opposite, less studied trend; namely, the ‘arbitralization’ of courts. Through a comparative analysis of different international commercial courts, the article explores how the competition with arbitration has prompted the establishment of these courts, and how arbitration has served as the inspiration for some of their most innovative features. The article concludes that while the incorporation of arbitration features could improve court proceedings, some of international commercial courts’ arbitration features undermine procedural justice and the role of courts as public institutions and therefore hit the limits of arbitralization.

In the opening pages of the academic literature on international commercial arbitration, the standard account is that in international commercial disputes most parties prefer arbitration. 1 Surveys indeed confirm that arbitration is by far the preferred dispute resolution method. 2 Although devised as a method to resolve disputes in an informal and flexible manner, it has been claimed that arbitration over time has lost its flexibility by becoming increasingly formal, and by incorporating litigation practices that extend the length of proceedings and raise costs. This increasing court-like formality has been termed the ‘judicialization’ of international commercial arbitration. 3

However, while international commercial arbitration is becoming progressively judicialized, international commercial courts evidence an opposite trend; namely, the ‘arbitralization’ of public courts and justice. 4 In order to attract parties with a preference for arbitration, some international commercial courts have adopted some of arbitration’s most valued features. Although in the case of some courts their arbitration features are limited in scope and therefore are simply ‘buzz’ words aimed at sending signals of quality and familiarity to prospective litigants, 5 international commercial arbitration has considerably influenced the institutional design and the procedural rules of some international commercial courts. While a growing body of academic literature has studied the worldwide proliferation of international commercial courts and their innovative features, 6 literature has not rigorously examined the role of international commercial arbitration as one of the main drivers behind the establishment of international commercial courts. 7 A detailed examination of which specific arbitration rules and practices have served as the blueprint for international commercial courts’ rules and practices is similarly missing.

Drawing from the study of policy documents, international commercial courts’ rules and case law as well as academic literature, this article presents a comparative analysis of how different international commercial courts emulate international commercial arbitration. It is argued that whether ‘competitors or partners 8 international commercial arbitration and its increasing popularity in cross-border commercial disputes have prompted the establishment of international commercial courts and have served as an inspiration for some of the courts’ most innovative features. Although different international commercial courts opt for different arbitration features, international commercial courts resemble arbitration by infusing greater flexibility into their proceedings, appointing foreign nationality judges, permitting foreign lawyers to appear before them, allowing parties to agree on private and confidential proceedings and expanding the enforceability of their judgments by turning court judgments into arbitral awards. By allowing parties to shape proceedings by their agreement, international commercial courts offer tailor-made proceedings and increased flexibility. Yet, some of international commercial courts’ arbitration features could undermine procedural justice and challenge the role of these courts as public institutions, in the service of broader interests that exceed the interests of the parties involved in trial. By exploring the implications of international commercial courts’ arbitration features, the article explores how far public courts can go in emulating international commercial arbitration.

The rest of the article is structured as follows. Section II begins by examining the role of arbitration in the emergence of international commercial courts. It confronts European perspectives with those of Asia, and juxtaposes ‘competing with arbitration’ with ‘partnering with arbitration’ approaches. Section III sets out international commercial courts’ innovative features, and examines how they resemble international commercial arbitration proceedings. It mainly focuses on the Singapore International Commercial Court (SICC) and the Dubai International Financial Centre (DIFC) Courts, these being the most inspired by arbitration. Where relevant, it also draws the Netherlands Commercial Court (NCC), the German Chambers for International Commercial Disputes, the Paris International Chambers, the Qatar International Court (QIC), the Abu Dhabi Global Market (ADGM) Courts, the Astana International Financial Centre (AIFC) Court and the China International Commercial Courts (CICC) into consideration. Having examined the implications of international commercial courts’ arbitration features in Section IV, Section V concludes that some arbitration features undermine procedural justice and the role of courts as public institutions and therefore hit the limits of ‘arbitralization’.

International commercial courts and international commercial arbitration aim at attracting the same types of disputes, and therefore a certain degree of competition between them is apparent. The overlapping caseload and the prominence of international commercial arbitration in parties’ preferences suggest that arbitration is international commercial courts’ main rival. Among the incentives that prompted the creation of international commercial courts, international commercial arbitration is indeed prevalent. However, different international commercial courts position themselves differently towards international commercial arbitration.

This section explores the different standpoints of international commercial courts in Europe and in Asia. It illustrates that, despite differences, international commercial arbitration and the competition with it have had a significant role to play in the establishment of international commercial courts.

A. European perspectives: international commercial courts as a competitor of arbitration

An examination of the studies that explored the viability of international commercial courts as well as the laws that brought the courts into being reveals international commercial arbitration as one of the reasons behind their creation. In Europe, the idea of international commercial courts was launched as a way to increase the attractiveness of these jurisdictions to litigants, and to reverse the trend of resolving disputes in common law courts and by arbitration. The establishment of international commercial courts in Europe was therefore presented as a response to the ‘vanishing trial’, 9 a term employed to describe the preference of parties for alternative dispute resolution methods, as well as the resulting decrease in the caseload of federal and state courts in the United States. 10

Starting with the NCC, the Council for the Judiciary’s plan for establishing the court, the NCC Plan, stressed that high-value and complex international commercial disputes are increasingly resolved by foreign courts, such as the London Commercial Court, or by arbitration. 11 As a result of the outflow of cases to English courts or arbitration, national courts deal less and less with commercial disputes having an international element, and this has a negative impact on their expertise and their ability to produce and shape the law. 12 According to the NCC Plan, the phenomenon of the ‘vanishing trial’ has a self-reinforcing effect, as Dutch lawyers opt more and more often for foreign courts or arbitration. 13 In addition, the NCC Plan delved into the economic gains that the establishment of the NCC would bring with it. As well as creating a business-friendly environment, the NCC could create business for the local bar and other service providers. The plan mentions the high legal fees charged in arbitration proceedings for high-value disputes as an indication of the court’s high turnover potential. 14 As such, the increasing popularity of arbitration was a central consideration in establishing the NCC. Like-minded considerations underlie the successive legislative proposals for establishing Chambers for International Commercial Disputes and Commercial Courts in Germany. The German proposals stress that despite the international recognition of the German justice system, parties prefer foreign courts or arbitration. 15 It is expected that the use of English would make German courts more accessible to foreign litigants, draw significant international commercial disputes and boost the attractiveness of the German justice system as a whole. 16

The NCC Plan and the proposals for the establishment of Chambers for International Commercial Disputes and Commercial Courts in Germany reveal the outflow of cases to arbitration and the ‘vanishing trial’ as one of the reasons behind the creation of the courts. However, the fact that international commercial arbitration and its prominence in cross-border commercial disputes were central considerations in the establishment of international commercial courts in Europe, does not mean that these courts and their host jurisdictions are not arbitration friendly. European countries, such as the Netherlands or Germany, have modern arbitration rules and a developed arbitration market. In addition, some European international commercial courts are additionally vested with jurisdiction over procedures related to international arbitration, and thereby support arbitration next to competing with it. For instance, in addition to ruling on appeals against NCC judgments, the Netherlands Commercial Court of Appeal (NCCA) has jurisdiction over arbitration-related procedures under the condition that the dispute is an international one, the place of arbitration is in the district of Amsterdam and the parties have made an explicit choice in favour of the NCCA. 17 Although the practical relevance of this provision is limited given that arbitration proceedings are commonly seated in the Hague, the provision nevertheless aims at boosting the attractiveness of the Netherlands as an arbitration destination by offering parties arbitrating their disputes in Amsterdam English language court proceedings before a specialized court. 18 Similar provisions can be also found in the rules of other international commercial courts. 19 All this suggests that the competition with arbitration was mainly targeted at foreign arbitral seats and institutions and their increasing popularity among domestic parties. By establishing specialized courts attractive to parties undertaking international business activities, the Netherlands and Germany made explicit their aim of modernizing the public court system, attracting disputes frequently escaping their borders and ultimately, wiping the dust off state court case law.

B. Asian perspectives: international commercial courts as a partner of arbitration

Whereas the reasons behind the establishment of international commercial courts in Asia vary, the Asian courts show a different relationship to arbitration. They present themselves as a complementary dispute resolution method that aims to attract disputes better suited for public court proceedings.

In 2005, the Emirate of Dubai established the DIFC Courts with the aim of offering prospective investors a reliable dispute resolution venue. 20 The aim of attracting foreign direct investment similarly prompted the subsequent establishment of the QIC, the ADGM Courts and the AIFC Court. 21 In 2015, Singapore established the SICC with the intention of further promoting Singapore as an Asian dispute resolution hub. 22 China followed in 2019, and established the CICC. 23 According to commentators, the CICC, being a division of the Supreme People’s Court, 24 is intended to concentrate high-value commercial disputes at China’s highest court, and thereby facilitate state control over high-stake disputes involving Chinese companies and a state interest. 25 Although the reasons behind the establishment of these courts are widely different, these jurisdictions share the aim of attracting dispute resolution in its various forms; namely, litigation, arbitration or mediation. In particular, Singapore hosts the Singapore International Arbitration Centre (SIAC) with its rapidly developing caseload, and promotes mediation through the Singapore Mediation Centre (SMC). 26 Similarly, the CICC hosts Chinese arbitration institutions under its roof, providing parties with a ‘one-stop’ dispute resolution platform, 27 and has assigned its Expert Committee the additional task of mediating disputes. 28 By establishing international commercial courts as one of many options in a diversified dispute resolution portfolio, these countries promote, respectively, the broader goals of investment attraction, the creation of a dispute resolution market or enhanced state control.

This might explain why the SICC invoked the shortcomings of arbitration in order to justify its establishment, and to present itself as being simply complementary to arbitration. A glance at the official website of the SICC reveals how the court targets arbitration’s weak spots. According to the website, although parties may be able to pursue their claims in international commercial arbitration, they may nevertheless wish to resolve their dispute in the SICC in order to avoid some of the problems encountered in arbitration. 29 These are the over-formalization of arbitration, also known as the ‘judicialization’ of international commercial arbitration, 30 legitimacy and ethical issues, 31 the lack of an appellate review mechanism 32 and the inability to join third parties who have not consented to arbitration proceedings. 33

The above illustrate how the SICC distinguishes itself from arbitration in order to underline its advantages as a public court and, consequently, its unique features. Although the SICC targets arbitration’s shortcomings, various stakeholders underline that the court does not intend to detract from arbitration’s caseload. Instead, the SICC aims at attracting disputes that would have bypassed Singapore, and thereby expand its dispute resolution market. 34 Sundaresh Menon, Chief Justice of Singapore, pointed out that just as the London Commercial Court exists alongside a vibrant arbitration market, the SICC would coexist in harmony with Singapore’s growing arbitration market. 35

While the SICC is the only international commercial court that explains in detail how it complements arbitration, most Asian international commercial courts similarly position themselves as being partners of arbitration rather than as competitors. 36 However, defining the relationship between international commercial courts and international commercial arbitration in competitive or complementary terms is simply a rhetorical dilemma, which actually reflects varying policy objectives and regional particularities. Despite differences in rhetoric, international commercial arbitration has played an important role in the establishment of international commercial courts both in Europe and in Asia.

In order to attract parties with a preference for arbitration, international commercial courts emulate international commercial arbitration, which serves to inspire some of the courts’ most innovative institutional and procedural features. Yet, not all international commercial courts are to the same degree arbitration-inspired. While the SICC or the DIFC Courts borrow multiple features from international commercial arbitration, the European international commercial courts borrow less. This could be attributed to factors such as the courts’ international outlook, the fact that some international commercial courts are deeply embedded in national justice systems, as well as to constitutional or other legal provisions that allow some courts to be more arbitration-inspired than others.

This section focuses on these features of international commercial courts that are explicitly modelled after arbitration rules and practices. It illustrates how specific international commercial courts resemble arbitration by infusing greater flexibility into their proceedings, appointing foreign nationality judges, permitting foreign lawyers to appear before the court, allowing parties to agree on private and confidential proceedings and expanding the enforceability of their judgments by turning court judgments into arbitral awards.

A. Procedural flexibility in international commercial courts

International commercial arbitration is frequently described as a ‘creature of contract’. 37 It is the will of the parties, expressed in an arbitration agreement, that submits disputes to arbitration and excludes the jurisdiction of national courts. 38 Arbitration agreements are therefore referred to as the ‘foundation stone’ of international commercial arbitration. 39 In addition, it is the parties’ agreement that regulates and shapes the conduct of proceedings. The light-touch approach of arbitration statutes, the minimal intervention of public courts in the arbitration proceedings and the freedom of the parties to design proceedings facilitate party autonomy and lend international commercial arbitration flexibility, 40 which is one of its most valued features. 41

Some international commercial courts base their jurisdiction on choice of court agreements. It is therefore claimed—similar in a way to arbitration—that the parties’ agreement is the cornerstone of international commercial courts. 42 In addition, similar to arbitration, some international commercial courts allow parties to have a greater say in the design of proceedings by, for instance, allowing parties to opt out of national rules of evidence or the right to appeal. This Part focuses on party autonomy in international commercial courts, exploring whether and to what extent party autonomy and the agreement of the parties permeates proceedings before an international commercial court. How far do international commercial courts go in reconciling freedom with law? 43

1. The agreement of the parties on jurisdiction

Except for the international commercial courts established in the Middle East and Kazakhstan, the rest of the courts base their jurisdiction primarily on choice of court agreements, and therefore lack mandatory jurisdiction. 44 The fact that international commercial courts predominantly require the parties’ agreement to establish jurisdiction brings them closer to arbitration and its consensual character.

The parties’ agreement not only establishes the international jurisdiction of international commercial courts but also shapes subject matter jurisdiction. International commercial courts deal with international disputes: namely, those that have a cross-border element. 45 In addition, a dispute has to be of a commercial nature in order to fall within the courts’ jurisdictional scope. 46 Although the definition of an international dispute varies significantly among different international commercial courts, criteria such as the parties’ place of business abroad or the place of the performance of the contract abroad may lend to the dispute the required cross-border character. 47

More interesting for present purposes is that the SICC Rules allow parties to turn a domestic dispute into an international simply by their agreement. 48 The definition of an international dispute in the SICC Rules is modelled after Article 5(2) International Arbitration Act 49 (IAA), which in turn incorporates Article 1(3) Model Law. In a similar vein, the definition of a commercial dispute under the SICC Rules was modelled after Article 1(1) IAA, which incorporates Article 1(1) Model Law. In 2016, the rules were amended so as to include that a claim is commercial in nature if, inter alia , the parties have expressly agreed that the subject matter of the claim is commercial in nature. 50 The SICC’s rules on the international and commercial character of a dispute show that the court lays increased emphasis on the parties’ agreement. It allows parties to agree on its subject matter jurisdiction, and to turn a domestic dispute into an international one, and likewise to turn a non-commercial dispute into a commercial one simply by way of their agreement.

2. The agreement of the parties on evidence proceedings

International commercial courts give parties a greater say than the ordinary courts in the design of proceedings and, more specifically, with regard to evidence proceedings. The Supreme Court of Judicature Act, the primary legislation setting out the constitution and powers of the SICC, provides that the SICC may apply rules of evidence found under any foreign law or otherwise. 51 According to SICC Rules, parties may agree on the rules of evidence that shall not apply and on the rules of evidence that shall apply instead, and submit the relevant application to the court. 52

The ability of the parties to disapply by agreement national rules of evidence and to apply foreign rules instead upsets a basic tenet in civil procedure, mandating that the law of the forum governs proceedings. 53 The SICC Rules set aside the axiom lex fori regit processum to give way to the parties’ agreement. Furthermore, the rules provide that parties may opt out of national rules and instead opt in not only to foreign rules but also to non-state, soft law instruments. 54 According to the SICC User Guides, the parties may agree on applying the International Bar Association Rules on the Taking of Evidence in International Arbitration. 55

Turning to the discovery of documents, the SICC does not apply the general discovery regime. 56 In SICC proceedings, the discovery of documents is limited to those on which the parties rely. 57 Just like other provisions modelled after arbitration, the SICC discovery regime has its origins in the IBA Rules on the Taking of Evidence. 58

Taken together, the SICC Rules allow parties to disapply by agreement national rules of evidence, and to agree instead on the application of foreign or arbitration rules. Moreover, although the SICC applies a more limited discovery regime based on the IBA Rules, the parties may agree and completely do away with the discovery of documents. Consequently, the parties’ agreement plays a central role in the design of proceedings at the SICC, and lends the court greater procedural flexibility. 59 This procedural flexibility was modelled explicitly after arbitration rules and practices.

The NCC Rules also offer parties greater flexibility. They provide that parties may enter into an agreement to depart from statutory rules of evidence, and shall submit their agreement with the first written submissions. 60 However, it is unclear whether the NCC Rules allow parties to choose non-state law, such as the IBA Rules, to govern evidence proceedings. 61 Similarly, the latest proposal for the establishment of Chambers for International Commercial Disputes and Commercial Courts in Germany explicitly permits parties to reach agreements with regard to evidence proceedings. 62 Finally, on the model of common law courts and arbitration, the Paris International Chambers permit extended evidence proceedings, are more lenient regarding the discovery of documents and allow for the cross-examination of witnesses. 63

3. Proof of foreign law

International commercial courts’ evidentiary flexibility becomes additionally evident with regard to the proof of foreign law. In common law jurisdictions, such as Singapore or the DIFC, foreign law is regarded as an issue of fact, whereas in civil law jurisdictions foreign law is regarded as an issue of law. In jurisdictions that consider foreign law an issue of fact, the proof of foreign law is frequently conducted on the basis of expert evidence. In order to avoid the related costs and time expenditure, foreign law at the SICC may be determined on the basis of direct submissions, whether oral, written or both. 64

Once again, arbitration practices were the source of inspiration. 65 The SICC Committee Report aspired that the possibility of proving foreign law on the basis of submissions would encourage foreign counsel, accustomed to the treatment of foreign law as a finding of law, to resolve their disputes before the SICC, and would align the SICC procedure with international arbitration practices that involve foreign counsel. 66

The DIFC Courts have a similar approach. With regard to the evidence rules applicable to questions of foreign law, the DIFC Court of Appeal ruled that the courts should accept legal submissions, as is usually done in international arbitration. 67 Former Chief Justice Michael Hwang, delivering the judgment on behalf of the court, stated that the composition of the DIFC Courts’ bench differs from that of the ordinary courts by having international judges hailing from various jurisdictions, and who therefore possess expertise involving various national laws. The justification for expert evidence, namely, the lack of relevant expertise on the part of a judge, does not apply when the foreign law applicable to the claims belongs to a jurisdiction in which one of the international judges hearing the case is qualified. 68 As an example, Justice Hwang used international arbitration, where the arbitral tribunal may well be qualified in the applicable substantive law, and the SICC, where foreign law may also be determined on the basis of submissions. 69

Despite being common law courts, the SICC and the DIFC Courts take a different evidentiary approach with regard to the proof of foreign law. Influenced by international commercial arbitration, these courts take full advantage of the foreign judges sitting on their bench, and of the foreign lawyers given permission to represent parties before them, and allow parties to prove the applicable foreign law on the basis of submissions. In this manner, the SICC and the DIFC Courts forego the rigid common law approach, instil greater flexibility in their proceedings and aspire to minimize the delays and costs that the evidence of foreign law may entail.

As noted above, international commercial courts underline the absence of appeals as one of arbitration’s drawbacks. Because arbitration awards are not subject to appeal, parties in international commercial arbitration lack the means to rectify any mistakes in law or in facts. The absence of appeals lends arbitration awards instant finality, and saves time and costs. 70 Still, international commercial courts observe that despite the unavailability of appellate review, international commercial arbitration is not necessarily faster and therefore cheaper than court litigation. Since arbitration is a ‘one shot’ procedure, parties tend to protract proceedings by leaving ‘no stone unturned’. 71 This ongoing debate, which has also been thoroughly hashed out in the context of investment arbitration, 72 reveals that the ‘appeal’ of the appeal mechanism is an unsettled matter of perspective. 73

International commercial courts offer parties the right to appeal. In particular, parties may appeal against judgments of the DIFC Court of First Instance to the DIFC Court of Appeal, SICC judgments to the Singapore Court of Appeal, NCC judgments to the NCCA, judgments of the International Chamber of the Paris Commercial Court to the International Chamber of the Paris Court of Appeal and judgments of the Frankfurt and Hamburg Chambers for International Commercial Disputes to the Higher Regional Court of the States of Hessen and Hamburg. 74 Being a division of the Supreme People’s Court, the highest adjudicative body in China, the CICC is an international commercial court that deprives parties of the right to appeal. 75 In a similar vein, the proposed German ‘Commercial Courts’ lack an appellate review mechanism. 76

Although the right to appeal is the default rule, some international commercial courts allow parties to waive or limit their right to appeal. Parties before the SICC may agree in writing to waive or limit their right to appeal. 77 The SICC Committee Report, which preceded the establishment of the SICC, clarified that when limiting their right to appeal, parties could restrict review to grounds modelled after international arbitration, such as breaches of natural justice or defects of the validity, and the scope of the SICC jurisdiction agreement based on Article 24 IAA or Article 34 Model Law. 78 Although not regulated explicitly in the rules of European international commercial courts, in civil law jurisdictions, such as the Netherlands or Germany, parties may similarly waive or restrict their right to appeal. 79

B. The judges at international commercial courts

On the basis of studies that have explored arbitration’s most valuable features, it would appear that parties value the ability to participate in the selection of arbitrators. 80 This ability also allows parties to appoint third-country nationals, and thereby enhances the neutrality of the arbitration, which is another valuable feature. 81 However, the ability to select arbitrators may give rise to biases and conflicts of interest. 82 The European Union’s proposal for a Multilateral Investment Court in the place of investment arbitration became the impetus for a revival of the debate on arbitrators’ independence and impartiality and conflicts of interest. The proposal aims to safeguard the independence and impartiality of its adjudicators, and to tackle biases and conflicts of interest, by proposing a permanent investment court that has strong rules on ethics and conflicts of interest, and adjudicators who are appointed for a fixed, non-renewable term, and who enjoy the security of tenure. 83

Parties choosing an international commercial court lack the ability to select the judge or judges that will decide their case. Party participation in case assignment, also referred to as ‘judge shopping’, would jeopardize judicial independence and impartiality. In civil law jurisdictions, judge shopping would in addition contravene constitutional norms such as the principle of the lawful judge, whereby the judge hearing a case must be determined in advance for each case, according to abstract rules and principles. 84 Because they are integrated within national judicial structures, international commercial courts in addition lack the neutrality desired by foreign parties who fear that national courts may favour their own nationals.

International commercial courts offset the inability of the parties to participate in the selection of judges by raising the predictability of case assignments, on the basis of criteria such as the nature of the dispute or the foreign law applicable to it. First, most international commercial courts provide ample information on the judges sitting on their bench. The courts list the judges on their websites, offer information on their nationality and provide a brief description of their professional background and expertise in specific fields of law. 85 Although European international commercial courts share less information online, the small number of judges appointed in combination with case law, publications or public appearances makes it easy for interested parties to identify the judges and their field of specialization. The availability of information about the judges increases transparency and raises the predictability of case assignments. According to the 2020 Final Report of the SIDRA Dispute Resolution Survey, 59% of respondents indicated that the availability of information about judges is an ‘absolutely crucial’ or ‘important’ factor in choosing an international commercial court. 86 Lastly, in international commercial courts with international judges on their bench, the foreign law applicable may give a hint as to the judge who may eventually be assigned to the case, owing to their knowledge of the specific law. 87 Therefore, although parties do not select the judges at an international commercial court, parties in some instances may predict the judge or judges that will decide their case.

Turning to neutrality, as observed, international commercial courts are national courts, and therefore lack the neutrality that international commercial arbitration enjoys. The appointment of judges of a foreign nationality instils some degree of neutrality in the bench of international commercial courts, and may counter the perception of them being national courts, staffed with national judges who are favourably disposed towards their own nationals.

Although no party-appointed judges sit in international commercial courts, and the courts may be perceived as being less neutral than arbitration, parties are reminded that, unlike arbitrators, judges in international commercial courts enjoy a high degree of independence and impartiality, and are free of the conflicts of interest that plague arbitration. 88

Indeed, international commercial court judges are not selected by the parties, and therefore any related biases and conflicts of interest are absent. However, the claim that these judges enjoy a high degree of independence and impartiality disregards the particularities of the international judges sitting at the DIFC Courts, the SICC, the QIC, the ADGM Courts and the AIFC Court. These judges are the courts’ strong suit. They bring with them expertise in specific fields of law, as well as international reputation, and enhance the neutrality of the courts’ bench. However, as Section IV illustrates, the appointment and remuneration conditions of international judges might under circumstances challenge their independence and impartiality.

C. Foreign lawyers before international commercial courts

The jurisdictional focus on international disputes and the appointment of foreign judges is not the only foreign element in international commercial courts. The DIFC Courts, the SICC, the QIC, the ADGM Courts and the AIFC Court allow foreign lawyers to appear in court. The inspiration for the possibility of representation by foreign lawyers was once again arbitration. In Singapore, the former Senior Minister of State for Law stressed that representation by foreign lawyers was aimed at incentivizing foreign parties to bring their disputes before the SICC. In the same manner that the number of international commercial arbitration cases boomed once Singapore amended its laws and allowed foreign lawyers to appear in arbitration proceedings, representation by foreign lawyers before the SICC would give the court and its caseload a significant boost. 89

A party to a case in the SICC or to an appeal from the SICC may be represented by a foreign lawyer, who is registered in accordance with the Legal Profession Act. 90 This Act distinguishes between two types of registration: full and restricted. Lawyers granted full registration may appear and plead in the SICC and appellate court proceedings as well as give advice, prepare documents and provide any other assistance in relation to the proceedings. 91 Lawyers granted restricted registration may appear in SICC and appellate court proceedings, as well as give advice and prepare documents only for the purpose of making submissions on foreign law. 92 The SICC User Guides clarify that the main category of cases in which full registration lawyers may represent parties is ‘offshore cases’. 93 An offshore case is an action that has no substantial connection to Singapore. 94

The limitations on representation by foreign lawyers before the SICC are a balancing act. 95 On the one hand, the rules incentivize foreign counsel to choose the SICC by allowing them to appear before the court in offshore disputes. On the other hand, they preserve the workload of Singapore practitioners by excluding representation by foreign lawyers in disputes with local ties. In addition, the SICC awards the costs of solicitors instructing Singapore counsel, even if the first did not appear before the court after being granted full or restricted registration. 96 By allowing foreign lawyers to appear before the SICC, or to recover fees even if they did not appear before the court, the SICC acknowledges the important role of lawyers as the real decision makers in choosing venues and steering disputes.

Foreign lawyers may represent clients in legal proceedings before European international commercial courts in conjunction with locally qualified lawyers. 97 As such, however, legal representation exclusively by foreign lawyers before these courts is not yet possible. Nevertheless, even in international commercial courts that allow representation by foreign lawyers, such as the SICC, it is unlikely that parties will appear in court without also hiring a local lawyer familiar with national court proceedings.

D. Privacy and confidentiality in international commercial courts

In addition to the flexibility of its proceedings, and the ability to select arbitrators, parties hold the privacy and confidentiality of arbitration in high regard. 98 The privacy and confidentiality of international commercial arbitration does not only speak to parties’ preferences. It also reveals a conceptual difference between arbitration and litigation. 99 Empowered by private agreement and funded by the parties, arbitration proceedings are governed by the parties’ choice and preferences. Despite divergences, especially with regard to the parties’ duty of confidentiality in the absence of an express legal or contractual basis and the publication of awards, 100 privacy and confidentiality is considered an inherent, almost axiomatic, feature of arbitration. 101 However, the expansion of arbitration to disputes that involve public interests or weaker parties has gradually eroded the axiom that arbitration proceedings are private and confidential. While privacy and confidentiality features strongly in international commercial arbitration, developments in the adjacent fields of investment and sports arbitration have opened the doors of arbitration proceedings to the public so as to increase transparency, and to safeguard public interests and the right to a fair trial of athletes, respectively. 102

Public courts and the publicity of trials and judgments are at opposite ends of the spectrum of international commercial arbitration and the privacy and confidentiality of its proceedings and awards. Just as privacy and confidentiality is an inherent feature of arbitration, publicity is a hallmark of litigation. It is ‘ the very soul of justice ’. 103 The right to a public trial and the public pronouncement of judgments is protected in national constitutions, and is enshrined in the right to a fair trial in international treaties, such as the United Nations Covenant on Civil and Political Rights and the European Convention on Human Rights. 104 Apart from contributing to a fair hearing for the involved parties, the publicity of court trials has a broader public function. The access of the public to courts enables public scrutiny of the judiciary and stimulates debate about legal rules. Nevertheless, mounting pressure to improve the efficiency of court proceedings has led to an increase in written court proceedings or court settlements and therefore gives substance to the claim that just as privacy and confidentiality in arbitration is gradually fading, publicity in court is declining. 105

International commercial courts underline the merits of open justice, and translate these into an advantage vis-à-vis arbitration. Open court proceedings and the publication of judgments create a body of jurisprudence and predictability for interested parties. 106 However, the SICC has a unique feature. It is the only international commercial court that offers parties the option to exclude publicity under specific conditions. According to the SICC Rules, there are three kinds of confidentiality orders: parties may apply for an order that the case be heard in camera; an order that no person may reveal or publish any information or document relating to the case; and an order that the court file be sealed. 107 While ruling on such an order, the court will take into consideration whether the case is an ‘offshore case’ and whether both parties agree. 108

It is asserted that in ‘offshore cases’—namely cases lacking a substantial connection to Singapore—the public interest in maintaining open court proceedings is less critical than in other cases bearing stronger connections to Singapore. 109 ‘Offshore cases’ and their weak link to the forum weaken in turn the potential of a clash with national public policy, and therefore justify a departure from the principle of open justice. Section IV explores the soundness of these arguments and the limits of private and confidential court proceedings.

Although the SICC is the only international commercial court that allows for private and confidential proceedings in offshore disputes, the most recent proposal for the establishment of Chambers for International Commercial Disputes in Germany has similarly responded to parties’ preference for private and confidential proceedings, and expands the parties’ right to request confidentiality orders. 110 Interestingly, the proposal notes that the need to attract cases, currently resolved in arbitration, back to state courts and to develop the law overrides the right to public trials. 111 Consequently, international commercial courts are gradually opening the door to private and confidential court proceedings.

E. Converting judgments into arbitral awards

The most valuable characteristic of international commercial arbitration is the enforceability of arbitral awards. 112 Despite variations in its interpretation by national courts, the New York Convention has acquired more than 150 contracting states to date, and arbitral awards as a result enjoy almost worldwide recognition and enforcement. 113

Unlike arbitral awards, court judgments lack an equally territorially extensive international treaty that would lend them nearly worldwide recognition and enforcement. The Hague Choice of Court Convention regulates the recognition and enforcement of exclusive choice of court agreements and the resulting court judgments, and has up until now attracted a significant number of contracting states. 114 At the time of writing, the Hague Judgments Convention has not yet entered in force. 115

Although the Hague Choice of Court Convention and the Hague Judgments Convention have promising potential, at present they are lagging far behind the New York Convention. Despite the lack of a multilateral treaty ensuring wide-reaching enforceability, various regional instruments facilitate the recognition and enforcement of foreign court judgments. In Europe, the Brussels Ibis Regulation or the Lugano Convention 116 have narrowed the grounds for refusing recognition and enforcement, and have simplified procedures. In contrast, the enforceability of Asian court judgments appears more challenging, due to the lack of a multilateral treaty and the small number of bilateral treaties. Yet, various regional initiatives aim at loosening the criteria for recognizing and enforcing foreign court judgments and fostering greater judicial cooperation. 117 In the absence of treaties, some international commercial courts have had to search for alternatives in order to improve the recognition and enforcement prospects of their judgments.

In this regard, the DIFC Courts came up with an innovative experiment to enhance the enforceability of their judgments. Just like those of the Dubai Courts, DIFC Court judgments may be enforced outside the United Arab Emirates (UAE). In particular, the UAE have entered into treaties with foreign jurisdictions providing for the reciprocal recognition and enforcement of court judgments. 118

Nevertheless, in order to enhance the enforceability of DIFC Courts judgments, especially in offshore disputes, the DIFC Courts experimented in 2015 with the ‘conversion’ of their judgments into arbitral awards. According to Practice Direction No. 2, parties could agree that any dispute arising out of or in connection with the non-payment of any money judgment given by the DIFC Courts could, at the option of the judgment creditor, be referred to arbitration under the Arbitration Rules of the DIFC-LCIA Arbitration Centre. 119 In this way, the DIFC Courts aimed to profit from the extensive territorial reach of the New York Convention, and lend to their judgments nearly worldwide enforceability. The Practice Direction further clarified that such an arbitration agreement provides the creditor with an additional option to enforce the judgment, and does not preclude their right to seek execution before any national court. Accordingly, the judgment debtor may not invoke this arbitration agreement against execution before a national court. 120

Enforcement through arbitration was presented as the last resort for a creditor seeking enforcement of a judgment. 121 Although there was no reported case of parties applying for the conversion of a DIFC Courts judgment into an arbitral award and although, as former Chief Justice Michael Hwang has explained, it was more of a ‘marketing’ tool, 122 this possibility was nevertheless a very innovative feature. However, doubts have been expressed as to whether the non-payment of a court judgment constitutes a dispute under the New York Convention. 123 Despite such doubts, the conversion of mediation settlements into arbitral awards 124 or court judgments illustrates that not every dispute before arbitral tribunals or courts involves a genuine dispute on the merits. 125 Furthermore, international commercial court stakeholders have employed a more conceptual argument that conceives arbitration as a delegated rather than a parallel justice. They have remarked that just as public courts have facilitated the recognition and enforcement of arbitral awards, the time has come for arbitration to pay back the favour. 126

In an attempt to become more attractive to prospective litigants, and to engage in forum selling, international commercial courts emulate some of arbitration’s most valued features. These features blur the distinction between litigation and arbitration, and signal the ‘arbitralization’ of courts. The common thread among the arbitration features is the increased emphasis on party autonomy and, in particular, the ability of the parties to design proceedings by way of their agreement. Parties before international commercial courts have a variety of options. They may agree to disapply national rules of evidence, to prove the foreign law on the basis of submissions, to be represented by a foreign lawyer, to conduct proceedings in private and confidentially and to convert a court judgment into an arbitral award. This procedural flexibility tailors proceedings to the dispute, and therefore may enhance efficiency. However, placing procedure in the hands of the parties and their lawyers may at the same time leave room for practices that protract the length of trials and increase litigation costs. Representation by foreign lawyers, for instance, may increase the number of lawyers representing parties in court, even if the complexity of the case does not require it. Therefore, although party autonomy may increase flexibility and tailor proceedings to parties’ preferences, it could at the same time be time consuming and expensive. The ‘judicialization’ of international commercial arbitration offers some merit to this argument, and illustrates how party autonomy may go wrong.

Moreover, some of the arbitration features of international commercial courts may undermine procedural justice and the role of courts as public institutions. Arbitration features that violate procedural rights could in turn offend the national public policy of the enforcing state and be a ground to refuse the recognition and enforcement of international commercial court judgments abroad. Procedural justice therefore imposes a limit on the ‘arbitralization’ of courts, and determines which specific institutional and procedural features can and cannot be borrowed from arbitration. This section identifies those arbitration features of international commercial courts that undermine procedural justice and hit the limits of ‘arbitralization’.

A. The joinder of third parties

As remarked, with the exception of the international commercial courts in the Middle East and Kazakhstan, the rest of the courts base their jurisdiction on choice of court agreements. This voluntary jurisdiction prevents third parties from being joined to pending international commercial court proceedings against their will. The joinder of third parties against their will could in particular violate their procedural rights, especially if we draw into consideration that some international commercial courts, such as the NCC or the SICC, impose higher—compared to the ordinary courts—court fees or use a foreign language as the language of court proceedings. If this is so, commercial courts—similar to arbitral tribunals—may not freely join non-consenting third parties to proceedings. While European international commercial courts provide for a series of detailed provisions that regulate the joinder of non-consenting third parties, Asian international commercial courts appear more willing to join third parties despite the lack of consent.

In particular, the NCC Rules provide that if a third party is added in a pending action as a claimant or a defendant upon their request, the third party is bound by the agreement of the initial parties to litigate in English and to bear the higher NCC court fees. 127 However, in cases of involuntary joinder—namely, if a third party is forced to join proceedings as is the case with contribution proceedings—the third party has to consent explicitly to litigating in English and to paying the NCC fees. If they do not, the NCC Rules provide either for separate contribution proceedings in Dutch and at the regular court fee or for a continuation of the NCC trial in Dutch, provided the initial parties agree. 128 The treatment of third parties in the NCC Rules reveals a tension between the courts’ voluntary jurisdiction and the joinder of non-consenting parties. Based on fair trial considerations, the court’s innovative features require consent irrespective of whether these parties are the initial or the subsequently joining third parties. Similarly, legislative proposals for the establishment of Chambers for International Commercial Disputes and ‘Commercial Courts’ in Germany entail detailed provisions with regard to third parties who may object to litigating before the chambers. 129

In contrast to the NCC and the German chambers, the SICC permits the joinder of third parties against their will. 130 However, this may deprive SICC third-party judgments from being recognized and enforced abroad since the court’s jurisdiction is not based on consent, and is therefore not covered by the Hague Choice of Court Convention. 131 More significantly, the fact that the SICC Rules and fees differ significantly from the ones applicable to trials at the General Division of the High Court could undermine the procedural rights of third parties added to proceedings against their will, and could therefore offend the public policy of the state in which recognition and enforcement is sought.

The above has revealed that international commercial courts may not borrow arbitration’s appealing features, and, in particular, a consent-based procedural lay out without at the same time having to pay the price of consent: namely, its relative nature. 132 Therefore, the joinder of third parties against their consent presents the first limit with regard to ‘arbitralization’.

B. International judges

Asian international commercial courts have appointed foreign nationality judges to their bench. Along with an international reputation, these judges bring with them expertise in foreign and commercial laws. However, their independence and impartiality may be called into question, owing to their appointment and remuneration conditions as well as their parallel practice as lawyers or arbitrators.

The DIFC Courts, the QIC, the ADGM Courts, the SICC and the AIFC Court have appointed to their bench international judges hailing from various jurisdiction. These judges, however, lack tenure, and are appointed on the basis of a private contract. In addition, international judges receive remuneration calculated on the basis of an hourly fee for the time spent on each assigned case. 133

The appointment and renewal procedure involving international judges and their case-dependent remuneration suggest that these judges rely on the government, and have a direct pecuniary interest in being appointed and assigned to cases. Consequently, the appointment and remuneration regime relating to international judges make them vulnerable to executive pressures, and may cast doubt on their independence and impartiality. This is especially true if we take into consideration that international commercial courts in Asia and the Middle East are politically charged courts, significant for the achievement of broader policy objectives.

The appointment conditions of international judges and, relatedly, their independence and impartiality became an issue before the Privy Council of the United Kingdom, hearing appeals from the Cayman Islands. 134 The appeal concerned a challenge to the independence of Judge Sir Peter Creswell, former Judge of the High Court of England and Wales, who after retirement in 2009 became an additional judge in the Financial Services Division of the Grand Court of the Cayman Islands. In 2011, Sir Creswell also became a Supplementary Judge of the Civil and Commercial Court of the Qatar Financial Centre. At the Grand Court of the Cayman Islands, he was assigned to wind-up a company named BTU Power Company. BTU’s preference shareholders, who held the effective economic interest in the company, were mainly Qatari, including the Minister of Finance of Qatar. The appellant had challenged the independence of Judge Creswell, claiming an apparent bias due to his position as a judge in Qatar and the involvement of the Minister of Finance, who was responsible for judicial appointments in the Qatar Civil and Commercial Court. 135

It was decided that the fair-minded and informed observer would see a real possibility that Judge Creswell’s judgment would be influenced, albeit subconsciously, by his concurrent appointment. In addition, the provisions of Qatari law governing the appointment and renewal procedure regarding judges of the Civil and Commercial Court are more opaque and less protective of judges than in the case of common law jurisdictions, such as the Cayman Islands and England. 136 This case demonstrates that the appointment and renewal procedures regarding international judges in some jurisdictions are obscure, and therefore lend themselves to impartiality and independence concerns. Furthermore, at the time of writing, some international judges are simultaneously arbitrators, included in the lists of arbitration institutes, or practise as lawyers. The dual practice of international judges as arbitrators or lawyers could give rise to conflicts of interest. 137

The above illustrates that international judges are not regular judges enjoying the same degree of independence and impartiality. International judges are a new ‘species’ of judges whose appointment, renewal and remuneration conditions, and parallel practice as arbitrators or lawyers may call into question their independence and impartiality and give rise to conflicts of interest. But even if international judges in some countries are subject to a similar regime as the rest of the judges, one should be aware of the institutional context and the overall independence of the judiciary in each country that has an international commercial court. 138 The appointment of international judges therefore might give rise to independence and impartiality concerns and is the second limit with respect to ‘arbitralization’.

C. Private and confidential court proceedings

As mentioned previously, the SICC is the only international commercial court that allows for private and confidential proceedings in offshore disputes. However, privacy and confidentiality is not unprecedented in the history of commercial litigation. The first recorded experiment involving private and confidential court proceedings was the Delaware Arbitration Programme. In 2009, a new state law gave the Delaware Court of Chancery the power to arbitrate business disputes if the parties request a member of the Court of Chancery to arbitrate a dispute. The most notable feature of the Delaware Arbitration Programme was its confidentiality. Proceedings were confidential and not of public record unless appealed. 139 The rationale of the Delaware Arbitration Programme was to preserve Delaware’s pre-eminence in offering cost-effective options for resolving disputes, particularly those involving commercial, corporate and technology matters. 140

Almost 2 years after enactment, the Delaware Coalition for Open Government, a non-profit corporation with the stated aim of promoting and defending the people’s right to transparency and accountability in government, brought the Delaware Court of Chancery Judges, the court itself and the state of Delaware to court. 141 By depriving the public of access to trials, the Delaware Arbitration Programme violated the constitution, in particular the First Amendment. 142

The United States Court of Appeals for the Third Circuit struck down the Delaware Arbitration Programme for violating the public’s right to access the court. According to the court, allowing public access would give stockholders and the public a better understanding of how Delaware resolves major business disputes. Opening the proceedings would also allay the public’s concerns about a process only accessible to litigants in business disputes. In addition, public access would subject litigants, lawyers and the Chancery Court judges alike to scrutiny from peers and the press. Finally, public access would discourage perjury, and ensure that companies could not misrepresent their activities to competitors and the public. 143

Various SICC Rules allow parties to shape proceedings by way of their agreement, and therefore resemble arbitration. Just as parties may enhance confidentiality in arbitration proceedings by entering into agreements for confidentiality, the SICC introduces a form of court-supervised confidentiality agreements. As noted by Bookman, the exclusion of publicity upon the parties’ agreement reaches the limits of ‘arbitralization’, because it undermines the public role of courts and the public benefits of openness. 144 Private and confidential court proceedings call into question the identity of the SICC as a state court that derives its power and legitimacy from the state.

Despite arguments that offshore cases and their weak link to Singapore may help lessen the possibility of a clash with Singaporean public policy, one might still object that apart from a national public policy, there is a transnational public policy mandating that court proceedings be held in public. But even if private and confidential proceedings at the SICC could escape the restraints of a transnational public policy, they would still stumble over the national public policy of the state of recognition and enforcement. Consequently, SICC judgments delivered in private and confidential proceedings could be refused recognition and enforcement abroad. Therefore, the publicity of proceedings is a public policy element that is excluded from the parties’ agreement. The exclusion of publicity and the conduct of proceedings privately and confidentially at the SICC constitute the third and final limit with respect to the ‘arbitralization’ of international commercial courts.

While international commercial courts in Europe were presented as a way to recapture disputes that were slipping out of public justice and into arbitration, international commercial courts in Asia were presented as being a complementary to arbitration and its shortcomings. Despite these differences in rhetoric, international commercial arbitration has played a significant role in the courts’ establishment, and has found its expression in the institutional and procedural features of international commercial courts. If we take further into consideration that international commercial arbitration is the most preferred dispute resolution method, it becomes apparent that international commercial arbitration is the main rival of international commercial courts. In order to compete effectively with it and attract disputes, international commercial courts are emulating some of arbitration’s most valued features. These arbitration features give away the growing convergence between public and private dispute resolution methods, and signal the ‘arbitralization’ of public courts and justice.

At the time of writing, the limited—compared to international commercial arbitration—caseload of international commercial courts underlines that they have not yet gained significant traction among parties and pose only a minor challenge to arbitration. However, as choice of court and dispute resolution methods is largely driven by the reputation of a national justice system as well as by established market practices, it will take some time for international commercial courts to cultivate a positive reputation, and to persuade parties to rewrite their dispute resolution clauses in their favour. This article has therefore primarily focused on the arbitration features of international commercial courts and their implications with regard to procedural justice and the public character of courts and civil justice. Even though some international commercial courts, such as the SICC or the DIFC Courts, adopt more arbitration features than others, these courts nevertheless set a trend for other international commercial courts and jurisdictions. Their impact therefore exceeds the borders of the countries hosting these courts. Common among the arbitration features of international commercial courts is party autonomy. International commercial courts treat procedure as a contract that the parties’ agreement may modify or waive. The increased emphasis on party autonomy allows parties to tailor proceedings and increases flexibility. However, under certain circumstances, party autonomy may also delay proceedings and increase costs. More important is that some of the arbitration features of international commercial courts may undermine procedural justice, and therefore reach the limits of ‘arbitralization’. The article identifies three such features: the joinder of third parties against their will; the appointment and renumeration regime regarding some international judges; and the conduct of private and confidential proceedings. Safeguarding third parties’ right to a fair trial, ensuring the independence and impartiality of the judiciary and preserving the public character of court proceedings are an indispensable part of a transnational public policy on procedural justice that should be exempted from the ‘arbitralization’ trend. Therefore, although the competition with international commercial arbitration encourages international commercial courts to borrow some of arbitration’s most valued features, and may improve public court proceedings, some of these features undermine procedural justice and the role of courts as public institutions.

I thank Prof X Kramer, Dr J Hoevenaars, Dr E Themeli, Prof M Ahmed, Prof G Meijer and Prof N Enonchong for their extremely helpful feedback. All errors and omissions remain my own.

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See also M Hwang, ‘Commercial Courts and International Arbitration ‒ Competitors or Partners?’ (2015) 31 Arbit Int 193, 201 referring to the Singapore International Commercial Court (SICC) as a hybrid court; P Bookman, ‘The Arbitration-Litigation Paradox’ (2019) 72 Vanderbilt Law Rev 1119; P Bookman, ‘The Adjudication Business’ (2020) 45 Yale J Int Law 227; P Bookman, ‘Arbitral Courts’ (2021) 61 Virginia J Int Law 161.

T Schultz and C Bachmann, ‘International Commercial Courts: Possible Problematic Social Externalities of a Dispute Resolution Product with Good Market Potential’ in S Brekoulakis and G Dimitropoulos (eds), International Commercial Courts: The Future of Transnational Adjudication (CUP 2022) 52, 56; G Antonopoulou, ‘Procedure before International Commercial Courts and Ordinary Courts: A Comparative Perspective’ in S Brekoulakis and G Dimitropoulos (eds), International Commercial Courts: The Future of Transnational Adjudication (CUP 2022) 421, 439.

X Kramer and J Sorabji (eds), International Business Courts: A European and Global Perspective (Eleven International Publishing 2019); M Requeho Isidro, ‘International Commercial Courts in the Litigation Market’ (2019) 9 Int J Proced Law 4; Bookman, ‘The Adjudication Business’ (n 4) 227; M Erie, ‘The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution’ (2020) 60 Virginia J Int Law 225; S Brekoulakis and G Dimitropoulos (eds), International Commercial Courts: The Future of Transnational Adjudication (CUP 2022).

However, see Bookman, ‘Arbitral Courts’ (n 4).

Hwang (n 4).

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M Galanter, ‘The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts’ (2004) 1 J Empir Leg Stud 459; T Stipanowich, ‘ADR and the “Vanishing Trial”’ (2004) 1 J Empir Leg Stud 843.

NCC Plan 2015, 3. See also The Boston Consulting Group, Market Survey Netherlands Commercial Court ( Marktverkenning Netherlands Commercial Court ), 1, 9, < https://docplayer.nl/111900001-Raad-voor-de-rechtspraak-marktverkenning-netherlands-commercial-court.html > accessed 1 November 2022.

ibid. See also Frits Bakker, ‘Speech’ (11 September 2014), < https://www.taxlive.nl/media/1647/speech-frits-bakker-dag-van-de-rechtspraak-11-9-2014.pdf > accessed 1 November 2022.

Federal Council ( Bundesrat ), Drucksache 219/21, Draft Proposal submitted by the Federal States of North Rhine-Westphalia and Hamburg ( Gesetzesantrag der Länder Nordrhein-Westfalen und Hamburg ), Legislative Proposal for Strengthening the Courts in Commercial Disputes ( Entwurf eines Gesetzes zur Stärkung der Gerichte in Wirtschaftsstreitigkeiten ) (17 March 2021), Begründung (Explanatory Statement), 11 (German Chambers Legislative Proposal 2021). See also German Chambers Legislative Proposal 2018, 1.

art 1.3.3(c) NCC Rules.

P Ortolani and B van Zelst, ‘International Commercial Courts and EU Law: Easing the Tension’ (2023) JInt Disput Settl 1, 13.

SICC Rules, Order 2, rule 1(2)(d). See also G Dimitropoulos, ‘International Commercial Courts in the “Modern Law of Nature”: Adjudicatory Unilateralism in Special Economic Zones’ (2021) 24 J Int Econ Law 361, 369.

J Krishnan and P Purohit, ‘A Common Law Court in an Uncommon Environment: The DIFC Judiciary and Global Commercial Dispute Resolution’ (2014) 25 Am Rev Int Arbit 497, 499; Z Al Abdin Sharar and M Al Khulaifi, ‘The Courts in Qatar Financial Centre and Dubai International Financial Centre: A Comparative Analysis’ (2016) 46 Hong Kong Law J 529, 539.

Bookman, ‘The Adjudication Business’ (n 4) 240.

SICC Committee, Report (November 2013), para 4 (a), < https://www.sicc.gov.sg/docs/default-source/modules-document/news-and-article/-report-of-the-singapore-international-commercial-court-committee-_90a41701-a5fc-4a2e-82db-cc33db8b6603-1.pdf > accessed 1 November 2022 (SICC Committee Report 2013).

Supreme People’s Court, Provisions on Several Issues Regarding the Establishment of the International Commercial Court , < Siyi-Lin-Translation-China-International-Commercial-Court.pdf (chinalawtranslate.com) > accessed 1 November 2022 (CICC Provisions).

ibid art 1.

Z Huo and M Yip, ‘Comparing the International Commercial Courts of China with the Singapore International Commercial Court’ (2019) 68 Int Comp Law Quart 903, 922. See also W Gu, ‘China’s Law and Development: A Case Study of the China International Commercial Courts’ (2021) 62 Harv Int Law J 67, 98.

SIAC Official Website, < https://www.siac.org.sg/ >; SMC Official Website, < https://www.mediation.com.sg/ > all accessed 1 November 2022.

Supreme People's Court, Notice on Inclusion of the First Group of International Commercial Arbitration and Mediation Institutions in the ‘One-stop’ Diversified International Commercial Dispute Resolution Mechanism (5 December 2018), < http://cicc.court.gov.cn/html/1/219/208/210/1144.html > accessed 1 November 2022.

Supreme People's Court, Decision on the Establishment of International Commercial Expert Committee (24 August 2018) < http://cicc.court.gov.cn/html/1/219/235/243/index.html > accessed 1 November 2022.

‘About the SICC’ ( SICC ), < https://www.sicc.gov.sg/about-the-sicc > accessed 1 November 2022. See also Hwang (n 4) 196–97; S Menon, ‘International Commercial Courts: Towards a Transnational System of Dispute Resolution’ (Opening Lecture for the DIFC Courts Lecture Series, 2015) paras 40–55; L Reed, ‘International Dispute Resolution Courts: Retreat or Advance?’ (John E. C. Brierley Memorial Lecture, 11 September 2017) 4.

See also Menon (n 29) paras 45–49; S Menon, ‘The Rule of Law and the SICC’ (Singapore International Chamber of Commerce Distinguished Speaker Series, 10 January 2018) para 26, < https://www.sicc.gov.sg/docs/default-source/modules-document/news-and-article/b_58692c78-fc83-48e0-8da9-258928974ffc.pdf > accessed 1 November 2022. For a similar discussion in the context of the NCC, see Parliamentary Papers II 2016/17 ( Kamerstukken II ), 34 761, no 3, Amendments to the Code of Civil Procedure and the Civil Court Fees Act With Regard to the Introduction of English-language Case Law at the International Commercial Chambers of the Amsterdam District Court and the Amsterdam Court of Appeal ( Wijziging van het Wetboek van Burgerlijke Rechtsvordering en de Wet griffierechten burgerlijke zaken in verband met het mogelijk maken van Engelstalige rechtspraak bij de internationale handelskamers van de rechtbank Amsterdam en het gerechtshof Amsterdam ), Explanatory Statement ( Memorie van Toelichting ), 2 (NCC Law).

See also Menon (n 29) para 51. For the regulation of arbitrators, see J Ilhão Moreira, ‘Arbitrators vis-à-vis Other Professions: A Sociology of Professions Account of International Commercial Arbitrators’ (2022) 49 J Law & Soc 48.

See also Menon (n 30) para 28(c).

Menon (n 29) para 42; Menon (n 30) para 28(a); S Menon, ‘International Commercial Courts in the Post-Pandemic Era’ (SICC 2021, 10 March 2021) para 8, < https://file.go.gov.sg/opening-address-cj-sicc-symposium.pdf > accessed 1 November 2022.

I Rajah, Senior Minister of State for Law, ‘Speech’ (Litigation Conference, 16 March 2015) para 25, < https://www.mlaw.gov.sg/news/speeches/speech-by-senior-minister-of-state-for-law-indraneerajah-at-t > accessed 1 November 2022; Hwang (n 4) 200.

Menon (n 29) para 10.

See also Born (n 1) 331.

art II Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed on 10 June 1958, effective 7 June 1959, 330 UNTS 3; Art 8 United Nations Commission on International Trade Law Model Law on International Commercial Arbitration 1985 with amendments as adopted in 2006 (Model Law).

Blackaby, Partasides and Redfern (n 1) 49.

Born (n 1) 22–23; Blackaby, Partasides and Redfern (n 1) 32.

2018 International Arbitration Survey (n 2) Chart 3; SIDRA International Dispute Resolution Survey 2020 (n 2) Exhibit 6.1.1.

A Chong and M Yip, ‘Singapore as a Centre for International Commercial Litigation: Party Autonomy to the Fore’ (2019) 15 J Priv Int Law 97, 102, 106; Ortolani and van Zelst (n 18) 4.

J Paulsson, The Idea of Arbitration (OUP 2013) 1.

Supreme Court of Judicature Act (Chapter 322), SICC Rules 2021, Order 2, rule 1(1)(b); art 30r(1) Dutch Code of Civil Procedure [DCCP]; art 1.3.1.(d) Rules of Procedure for the International Commercial Chambers of the Amsterdam District Court (NCC District Court) and the Amsterdam Court of Appeal (NCC Court of Appeal) (December 2020) [NCC Rules]; art 2(1) CICC Provisions; German Chambers Legislative Proposal 2018, Draft art 114b Courts Constitution Act.

art 30r(1) DCCP; art 1.3.1.(b) NCC Rules; German Chambers Legislative Proposal 2018, Draft art 114b Courts Constitution Act; art 1.1. Protocol on Procedural Rules Applicable to the International Chamber of the Paris Commercial Court (Protocol—Paris Commercial Court); SICC Rules, Order 2, rule 1(1)(a); art 3 CICC Provisions.

art 5(A)(1) and (2) Law No (16) of 2011 Amending Certain Provisions of Law No (12) of 2004 concerning DIFC Courts; art 8(3)(c) QFC Law, Law No (7) of 2005; art 13(6) Law No (4) of 2013 Concerning ADGM; SICC Rules, Order 2, rule 1(1)(a); art 26 AIFC Court Regulations; art 1.2. Protocol—Paris Commercial Court; art 1.3.1.(a) NCC Rules; Explanatory Notes to art 1.3.1.(a) NCC Rules; art 95 German Courts Constitution Act. The CICC Provisions omit a definition of ‘commercial’. However, see Decision on China Joining the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Court Issuance No 5 of 1987).

Explanatory Notes to art 1.3.1.(b) NCC Rules; German Chambers Legislative Proposal 2018, Explanatory Statement, 14.

SICC Rules, Order 2, rule 1(3)(a)(ii).

International Arbitration Act (Chapter 143A, Revised Edition 2002).

SICC Rules, Order 2, rule 1(3)(b)(iii).

Supreme Court of Judicature Act section 18K; SICC Rules, Order 13, rule 15(1).

SICC Rules, Order 13, rule 15(2). See also J Landbrecht, ‘The Singapore International Commercial Court (SICC) ‒ an Alternative to International Arbitration?’ [2016] ASA Bull 112, 120; L Teh, ‘The Singapore International Commercial Court’ (2017) 11 Disput Res Int 143, 146; M Yip, ‘The Singapore International Commercial Court: The Future of Litigation?’ (2019) 12 Erasmus Law Rev 88, 89.

See also DR Demeter and KM Smith, ‘The Implications of International Commercial Courts on Arbitration’ (2016) 33 J Int Arbit 441, 446.

For the exclusion of such a possibility in European regulations with regard to the choice of law applicable to the substance of the dispute, see P Mankowski, ‘Article 3: Freedom of Choice’ in U Magnus and P Mankowski (eds), European Commentaries on Private International Law ‒ Rome I Regulation Commentary (Verlag Dr. Otto Schmidt 2017) paras 248–57.

International Bar Association Rules on the Taking of Evidence in International Arbitration, adopted by a resolution of the International Bar Association Council, 29 May 2010. SICC User Guides (Applicable to Proceedings Governed by the SICC Rules 2021), Note 4—Disapplication of Singapore Evidence Law.

SICC Rules, Order 12.

SICC Rules, Order 12, rule 1.

Menon (n 29) para 34(c); T Hwee Hwee, J Yeo and C Seow, ‘The Singapore International Commercial Court in Action – Illustrations from the First Case’ (2016) 28 Singapore Acad Law J 692, 701. See also B2C2 Ltd v Quoine Pte Ltd [2018] SGHC(I) 04, [2018] 4 SLR 67, paras 22–31.

Teh (n 52) 146; Chong and Yip (n 42) 101.

art 8.3 NCC Rules.

E Bauw, ‘Commercial Litigation in Europe in Transformation: The Case of the Netherlands Commercial Court’ (2019) 12 Erasmus Law Rev 15, 18–20.

German Chambers Legislative Proposal 2021, art 2—Amending the Code of Civil Procedure, Draft art 284 (3).

arts 4.3., 5.1 and 5.4.4 Protocol—Paris Commercial Court; arts 3 and 4 Protocol—Paris Court of Appeal. See also A Biard, ‘International Commercial Courts in France: Innovation without Revolution? (2019) 12 Erasmus Law Rev 24, 29; E Jeuland, ‘The International Chambers of Paris: A Gaul Village’ in X Kramer and J Sorabji (eds), International Business Courts (Eleven International Publishing 2019) 65, 77.

Supreme Court of Judicature Act section 18L; SICC Rules, Order 16, rule 8. See also Hwee Hwee, Yeo and Seow (n 58) 702–10.

SICC Committee Report 2013 (n 22) para 34. See also Yip (n 52) 89.

SICC Committee Report 2013 (n 22) para 34; Menon (n 29) para 34 (b).

Fidel v Felecia and Faraz [2015] DIFC CA 002, para 49.

ibid paras 56–57.

ibid paras 67–70.

Born (1) 22.

Menon (n 29) paras 48–49.

European Commission, Commission Staff Working Document, Report, Online Public Consultation on Investment Protection and Investor-to-State Dispute Settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP) (13 January 2015) SWD(2015) 3 final; European Commission, Recommendation for a Council Decision Authorising the Opening of Negotiations for a Convention Establishing a Multilateral Court for the Settlement of Investment Disputes (13 September 2017) COM(2017) 493 final; Possible Reform of Investor-State Dispute Settlement (ISDS) Appellate Mechanism and Enforcement Issues, Annotated Comments from the European Union and its Member States to the UNCITRAL Secretariat (19 October 2020).

See also 2018 International Arbitration Survey (n 2) Charts 3 and 4.

Supreme Court of Judicature Act section 29C(2) in combination with Sixth Schedule, 1(f); 1.3.3.(a) NCC Rules; art 1.3. Protocol—Court of Appeal of Paris; art 119(1) German Courts Constitution Act.

art 1 CICC Provisions.

German Chambers Legislative Proposal 2021, Special Part, on Draft art 119(4) German Constitutions Act.

For proceedings before 1 April 2022, see SICC Practice Directions, No 139(3).

SICC Committee Report 2013 (n 22) para 35.

art 515 German Code of Civil Procedure. See also M Kuijpers, The Netherlands Commercial Court (Ars Aequi Libri 2019) 69.

R Drahozal, ‘Empirical Findings on International Arbitration: An Overview’ in T Schultz and F Ortino (eds), The Oxford Handbook of International Arbitration (OUP 2020) 663–64; W Park, ‘Arbitrator Integrity’, in M Waibel, A Kaushal, KL Chung and C Balchin (eds), The Backlash Against Investment Arbitration (Kluwer 2010) 189; J Paulsson, ‘Moral Hazard in International Dispute Resolution’ (2010) 25 ICSID Rev Foreign Invest Law J 339; S Brekoulakis, ‘Systemic Bias and the Institution of International Arbitration’ (2013) 4 J Int Disput Settle 553.

Council of the European Union, Negotiating Directives for a Convention Establishing a Multilateral Investment Court for the Settlement of Investment Disputes (20 March 2018).

art 101(2) Basic Law for the Federal Republic of Germany; art 17 the Constitution of the Kingdom of the Netherlands 2008.

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SIDRA International Dispute Resolution Survey 2020 (n 2) Exhibit 8.2.1.

Chong and Yip (n 42) 101.

Menon (n 29) para 51; Menon (n 30) para 27f; S Menon, ‘International Commercial Courts in the Post-Pandemic Era’ (SICC Symposium 2021, 10 March 2021) para 8.

Rajah (n 34).

Supreme Court of Judicature Act section 18M.

Legal Profession Act, S. 36P(1).

Legal Profession Act, S. 36P(2).

SICC User Guides, Note 3, para 3.

SICC Rules, Order 3, rule 3. See also Teras Offshore Pte Ltd v Teras Cargo Transport (America) LLC [2016] 4 SLR 75, para 8; BNP Paribas SA v Jacob Agam [2018] SGHC(I) 03; Perry v Esculier [2020] SGHC(I) 22.

Landbrecht (n 52) 123; Yip (n 52) 89.

Sheila Kazzaz v Standard Chartered Bank [2020] SGHC(I) 19, paras 9–12.

art 3.1.2. NCC Rules. See also Council Directive 77/249/EEC of 22 March 1977 to Facilitate the Effective Exercise by Lawyers of Freedom to Provide Services; Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to Facilitate Practice of the Profession of Lawyer on a Permanent Basis in a Member State Other Than That in Which the Qualification Was Obtained.

E Reymond-Eniaeva, Towards a Uniform Approach to Confidentiality of International Commercial Arbitration (Springer 2019) 133.

ibid 7; DR Hensler and D Khatam, ‘Re-Inventing Arbitration: How Expanding the Scope of Arbitration is Reshaping its Form and Blurring the Line Between Private and Public Adjudication’ (2018) 18 Nevada Law J 381, 388, 407; HN Aragaki, ‘The Metaphysics of Arbitration: A Reply to Hensler and Khatam’ (2018) 18 Nevada Law J 541, 558.

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J Bentham, ‘Bentham's Draught for the Organization of Judicial Establishments, Compared with That of the National Assembly, with a Commentary on the Same’ in J Bowring (ed), The Works of Jeremy Bentham , vol 4 (William Tait 1843) 316.

art 14(1) 1966 United Nations Covenant on Civil and Political Rights; art 6 European Convention on Human Rights.

See J Resnik, ‘Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights’ (2015) 124 Yale Law J 2804.

Rajah (n 34) para 40; Yip (n 52) 89; Gu (n 25) 70.

SICC Rules, Order 16, rule 9(1).

SICC Rules, Order 16, rule 9(2); SICC User Guides, Note 3, para 8.

M Yip, ‘Singapore International Commercial Court: A New Model for Transnational Commercial Litigation’ in Ying-jeou Ma (ed), Chinese (Taiwan) Yearbook of International Law and Affairs (Martinus Nijhoff 2014) 155, 160.

German Chambers Legislative Proposal 2021, art 2—Amending the Code of Civil Procedure ( Änderung der Zivilprozessordnung ), Draft Article 510(5) and (6).

German Chambers Legislative Proposal 2021, Explanatory Statement ( Begründung ), 31.

New York Convention, Contracting States, < https://www.newyorkconvention.org/list+of+contracting+states > accessed 1 November 2022.

Convention of 30 June 2005 on Choice of Court Agreements, Status Table, < https://www.hcch.net/en/instruments/conventions/status-table/?cid=98 > accessed 1 November 2022.

Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgements in Civil or Commercial Matters, Status Table, < https://www.hcch.net/en/instruments/conventions/status-table/?cid=137 > accessed 1 November 2022.

Convention on Recognition and Enforcement of Judgements in Civil and Commercial Matters, 21 December 2007 OJ L339/3.

A Chong, ‘Moving Towards Harmonization in the Recognition and Enforcement of Foreign Judgement Rules in Asia’ (2020) 16 J Priv Int Law 31, 55; A Reyes and K Tan, ‘Recognition and Enforcement of International Commercial Court Judgments’ in L Chen and A Janssen (eds), Dispute Resolution in China, Europe and World, Ius Gentium: Comparative Perspectives on Law and Justice (Springer 2020) 37, 44.

These treaties are the Gulf Cooperation Council Convention (1996); the Riyad Convention (1983); and bilateral treaties with Tunisia (1975), France (1992), India (2000), Egypt (2000), China (2004) and Kazakhstan (2009).

Amended DIFC Courts Practice Direction No 2 of 2015—Referral of Judgment Payment Disputes to Arbitration.

DIFC Courts, Enforcement Guide 2018 , 14.

Amended DIFC Courts Practice Direction No 2 of 2015.

Hague Conference of Private International Law, ‘HCCH a|Bridged: Innovation in Transnational Litigation’ (Conference, 1 December 2021).

M Hwang, ‘The DIFC Courts Judgment – Arbitration Protocol, Referral of Judgment Payment Disputes to Arbitration’ (DIFC Courts Lecture, 19 November 2014) 1, 5–7, < https://www.difccourts.ae/rules-decisions/practice-directions/difc-courts-chief-justices-explanatory-lecture-notes-referral-judgment-payment-disputes-arbitration-november-2014 > accessed 1 November 2022; A Reyes, ‘Recognition and Enforcement of Interlocutory and Final Judgments of the Singapore International Commercial Court’ (2015) 2 J Int Comp Law 337, 345; Demeter and Smith (n 53) 457–61; DI Tan, ‘Enforcing National Court Judgments as Arbitration Awards under the New York Convention’ (2018) 34 Arbit Int 415, 428.

The Mediation Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, art 14. See also C Newmark and R Hill, ‘Can a Mediated Settlement Become an Enforceable Arbitration Award?’ (2000) 16 Arbit Int 81.

Similarly, Hwang (n 4) 205–8.

Unrecorded discussion with stakeholder.

art 2.2.2. NCC Rules.

ibid; Explanatory Notes to art 2.2. See also Kuijpers (n 79) 58–59.

German Chambers Legislative Proposal 2018, art 1—Amending the Courts Constitution Act ( Änderung des Gerichtsverfassungsgesetzes ), Draft art 184(2) and art 2—Amending the Code of Civil Procedure ( Änderung der Zivilprozessordnung ), Draft art 73(2); German Chambers Legislative Proposal 2021, art 1—Amending the Courts Constitution Act ( Änderung des Gerichtsverfassungsgesetzes ), Draft art 184(3) and art 2—Amending the Code of Civil Procedure ( Änderung der Zivilprozessordnung ), Draft art 73(2).

SICC Rules, Order 10, rules 5–7.

D Stamboulakis and B Crook, ‘Joinder of Non-Consenting Parties: The Singapore International Commercial Court Approach Meets Transnational Recognition and Enforcement’ (2019) 12 Erasmus Law Rev 97, 98.

Bookman, ‘Arbitral Courts’ (n 4) 205–9.

A King and P Bookman, ‘Travelling Judges’ (2022) 116 Am J Int Law 477, 502.

Almazeedi v Penner [2018] UKPC 3.

See art 4 Schedule No 6, The Civil and Commercial Court, QFC Law No (7) of 2005.

ibid para 17.

Singapore International Arbitration Centre (SIAC), ‘Plenary Session – How International Arbitration and International Commercial Courts Play Unique, Important and Complementary Roles in International Dispute Resolution?’ (Highlights from the SIAC Virtual Congress 2021), 6–7, < file:///C:/Users/grgan/Downloads/SIAC%20Virtual%20Congress%202021%20Newsletter.pdf >.

See also L Clover Alcolea, ‘The Rise of the International Commercial Court: Threat to the Rule of Law?’ (2022) 13 J Int Disput Settl 413, 433.

The Delaware Code, Title 10, § 347 (b). See also T Stipanowich, ‘In Quest of the Arbitration Trifecta, or Closed Door Litigation: The Delaware Arbitration Programme' (2013) J Bus Enterpreneurship Law 349, 368–69.

Stipanowich (n 139) 350. See also M Steele and others, ‘Delaware’s Closed-Door Arbitration: What the Future Holds for Large Business Disputes and How it Will Affect M&A Deals’ (2013) 6 J Bus Entrepreneurship Law 375, 376.

Delaware Coalition for Open Government, Inc v The Honorable Leo E. Strine, Jr No CIV.A. 1:11–1015, 2012 WL 3744718.

ibid paras 19–20.

United States Court of Appeals for the Third Circuit, No 12-3859 Delaware Coalition for Open Government, Inc v The Honorable Leo E Strine . See also J Kharatian, ‘Secret Arbitration or Civil Litigation?: An Analysis of the Delaware Arbitration Program’ (2013) 6 J Bus Entrepreneurship Law 411, 415.

Bookman, ‘Arbitral Courts’ (n 4) 209–12. See also H Noyes, ‘If You (Re)Build It, They Will Come: Contracts to Remake the Rules of Litigation in Arbitration’s Image’ (2007) 30 Harv J Law Public Policy 579, 633.

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International Arbitration Research

Getting started, arbitration terminology, hollis searching, books & treatises, online sources, awards and proceedings, new york convention, regional materials, getting help.

This is a guide to international commercial and investment arbitration research at the Harvard Law School Library. 

The content of this guide is on a single page. To search for a term in the guide, use CTRL+F. To navigate through the guide, use the links on the left.

If you have questions about this guide or need research help, please visit  https://asklib.law.harvard.edu/index.php .

QUICK LINKS

Below are quick links to some of our most popular resources for arbitration research.

• Global Arbitration Review 100 (print edition, includes the GAR 100 and GAR 30 lists, shelved in the reading room
• International Commercial Arbitration (Gary Born) (Treatise)
• Investment Arbitration Reporter (Subscription Database)
• Investor-State Law Guide (Subscription Database)
• Jus Mundi (Subscription Database)
• KluwerArbitration (Subscription Database)
• Oxford Legal Research Library: International Commercial Arbitration (Subscription Database)
• Redfern and Hunter on International Arbitration (Treatise)

Below are links to information about words or phrases that often appear in the arbitration literature.  Terms listed include those used in the following types of arbitration, both of which are covered in this guide: 

• Investment arbitration:  resolving a dispute between a private investor and a state
• Commercial arbitration:  resolving a dispute between two private parties that have entered into a commercial contract with each other

A variety of types of sources are linked to, including legal dictionaries, introductory treatises, and official websites of relevant organizations.

• Arbitration
• Arbitration Agreement
• Arbitration Clause
• Bilateral Investment Treaty (BIT)
• Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Arbitration Convention) (1958)
• International Center for Settlement of Investment Disputes (ICSID)
• International Institute for the Unification of Private Law (UNIDROIT)
• Investment Treaty
• Investment Treaty Law
• United Nations Convention on Contracts for the International Sale of Goods (CISG) (Vienna, 1980)
• United States Commission on International Trade Law (UNCITRAL)

Using the Harvard Library Catalog, HOLLIS, for Arbitration Research

Access to all sources listed in this guide is available through the HOLLIS library catalog at  https://hollis.harvard.edu , which you can use to search for books, journal articles, and more.  Limit search results by resource type, library location, and more using the options on the right side of the search results screen.

Searching HOLLIS

Below is a list of pre-populated HOLLIS searches that are relevant for international arbitration research.  Click a link to view its search results in HOLLIS.  Note that most of these searches are very broad, so you will probably want to limit the search results by date, additional keywords, or other options.

• HOLLIS search: Keyword anywhere = "friendship, commerce, and navigation"
• HOLLIS search: Keyword anywhere = "investment arbitration"
• HOLLIS search: Keyword anywhere = "investment treaty arbitration"
• HOLLIS search: Keyword anywhere = "investor-state dispute"
• HOLLIS Search: Keyword anywhere = "trade arbitration"
• HOLLIS search: Keywords anywhere = "international investment law" AND "arbitration"
• HOLLIS search: Subject = "Agreement on Trade-Related Aspects of Intellectual Property Rights" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "arbitration act"
• HOLLIS search: Subject = "arbitration" AND Keyword anywhere = "confidentiality"
• HOLLIS search: Subject = "arbitration (international law)"
• HOLLIS search: Subject = "arbitration, industrial"
• HOLLIS search: Subject = "arbitration agreements"
• HOLLIS search: Subject = "arbitration and award"
• HOLLIS search: Subject = "CISG" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "commerce" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "commercial arbitration"
• HOLLIS search: Subject = "commercial courts -- rules and practice"
• HOLLIS search: Subject = "commercial treaties" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "Conflict of Laws -- Arbitration and Award"
• HOLLIS search: Subject = "dispute resolution (law)" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "foreign trade regulation" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "General Agreement and Tariffs and Trade" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "ICSID" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "intellectual property" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "international chamber of commerce" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "international commercial arbitration"
• HOLLIS Search: Subject = "international disputes" AND Keyword Anywhere = "arbitration"
• HOLLIS search: Subject = "international law" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "international sales law"
• HOLLIS search: Subject = "international trade law" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "investments, foreign" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "jurisdiction (international law)" AND Keyword Anywhere = "arbitration"
• HOLLIS search: Subject = "parallel proceedings (law)"
• HOLLIS search: Subject = "UNCITRAL" AND Keyword anywhere = "arbitration"
• HOLLIS search: Subject = "Willem C. Vis International Commercial Arbitration Moot"
• HOLLIS search: Subject = "World Trade Organization" AND Keyword anywhere = "arbitration"

Browsing Materials in HOLLIS by Library of Congress Call Number

Books in our library are organized on the shelves by subject and classified according to the Library of Congress call number system.  Under this system, all books that are primarily about law have a call number that starts with the letter "K."  If the book is mainly about international arbitration, then its call number will begin with "K2400."

In HOLLIS, you can browse books by call number.  Click the link below to browse the K2400 books in HOLLIS.

HOLLIS call number browse: K2400​

Using HOLLIS to Find Papers on Arbitration Written by HLS LLM and SJD Students

To view a list of papers on the topic of arbitration in the library's collection written by HLS LLM and SJD students, click the link below to run the appropriate search in HOLLIS:

Title = "Harvard Law School Thesis" AND Keywords anywhere = "arbitration"

Subscription Databases for Arbitration Research

Below is a list of subscription databases that are helpful for arbitration research, organized alphabetically. For each database, a link to its HOLLIS record, which include a link to its Harvard-specific URL, is provided, along with a brief description of its content.

• Global Arbitration Review (GAR) "International journal of public and private arbitration."
• HeinOnline HeinOnline provides comprehensive coverage of more than 2,600 law-related periodicals. It also contains materials related to treaties, constitutions, case law, world trials, classic treatises, international trade, foreign relations, and more.
• Investment Arbitration Reporter (IAReporter) Investment Arbitration Reporter is a news & analysis service tracking international arbitrations between foreign investors and sovereign governments.
• Investor-State Law Guide Investor-State Law Guide provides access to all materials relevant to publicly available ICSID, NAFTA and ad hoc tribunal decisions. Note that you may experience access problems for this database if you are using a Google Chrome browser.
• Jus Mundi Search engine for international law and arbitration -- includes extensive database of arbitral awards and citator functionality.
• KluwerArbitration KluwerArbitration is the world's leading online resource for international arbitration research. It contains a wealth of commentary from expert authors and an extensive collection of primary source materials, including ICC materials.
• Oxford Reports on International Law Includes two modules: International Law in the EU Courts and International Trade Law Decisions.
• Westlaw In the search box on the Westlaw homepage, type "International Arbitration Materials" and select the corresponding link when it comes up in the drop-down menu. Content: cases, awards, rules, conventions, legislation, model laws, guides, model clauses, treatises, journals, and current awareness.
• WorldTradeLaw.net Provides summary and analysis of all WTO reports and arbitrations; a current keyword index; a database of dispute settlement tables and statistics; and a user-friendly search tool for WTO cases, legal texts, and other documents.

General Arbitration Research: Books/Treatises

Below are selected secondary sources that discuss international arbitration in general. They may provide a good basic overview for your research.

• The Complete (But Unofficial) Guide to the Willem C. Vis International Commercial Arbitration Moot by Jörg Risse Publication Date: 2015 (3rd ed.)
• The Culture of International Arbitration by Won L. Kidane Publication Date: 2017
• Domke on Commercial Arbitration by Martin Domke Publication Date: 2003-
• The Evolution of International Arbitration: Judicialization, Governance, Legitimacy by Alec Stone Sweet and Florian Grisel Publication Date: 2017
• Foreign Investment Law Including Investor-State Arbitrations in a Nutshell by Ralph H. Folsom Publication Date: 2022
• The Functions of Arbitral Institutions by Remy Gerbay Publication Date: 2016
• International Arbitration: A Practical Guide by Stuart Dutson Publication Date: 2019 (2nd ed.)
• International Arbitration: Law and Practice by Gary Born Publication Date: 2016 (2nd ed.)
• International Commercial Arbitration by Gary Born Publication Date: 2014 (2nd ed.)
• International Commercial Arbitration: A Transnational Perspective by Tibor Varady et al. Publication Date: 2019 (7th ed.)
• International Commercial Arbitration: International Conventions, Country Reports, and Comparative Analysis by Stephan Balthasar (ed.) Publication Date: 2016
• International Investment Arbitration: Substantive Principles by Campbell McLachlan Publication Date: 2017 (2nd ed.)
• International Investment Law and Arbitration: History, Modern Practice, and Future Prospects by Borzu Sabahi, Ian A. Laird, and Giovanna E. Gismondi Publication Date: 2018
• National Arbitration Laws by Loukas Mistelis, Laurence Shore, general editors ; Hans Smit, founding editor. Publication Date: 2010 (2nd ed., looseleaf)
• The Principles and Practice of International Commercial Arbitration by Margaret L. Moses Publication Date: 2017 (3rd ed.)
• Private International Law and Arbitration (v. 1) by Jack J. Coe, Jr. and Donald Earl Childress (eds.) Publication Date: 2018
• Redfern and Hunter on International Commercial Arbitration by Nigel Blackaby Publication Date: 2015 (6th ed.) Note: This is also available as an eBook through KluwerArbitration. .
• UCIA -- Universal Citation in International Arbitration by Stephen Anway et al. (eds.) Publication Date: 2023 (2nd ed.)
• The World Arbitration Reporter: International Encyclopedia of Arbitration Law and Practice by Loukas Mistelis, Laurence Shore, general editors ; Hans Smit, founding editor Publication Date: 2010- (Looseleaf)

Arbitration Book Series

Academic publishers sometimes issue a series of books about a particular subject, and there are a few series devoted to arbitration.  To search HOLLIS by series title, click its corresponding link below.

• Arbitration in Context (Kluwer)
• International Arbitration Law Library (Kluwer)
• International Commerce and Arbitration (Eleven)
• International Courts and Tribunals Series (Oxford)
• Lloyd's Arbitration Law Library (Routledge)
• Oxford International Arbitration Series

Selected Topics in Arbitration: Books/Treatises

• Addressing Corruption Allegations in International Arbitration by Brody K. Greenwald and Jennifer A. Ivers. Publication Date: 2019
• Arbitration and Contract Law: Common Law Perspectives by Neil Andrews Publication Date: 2016
• Arbitration in the Digital Age: The Brave New World of Arbitration by Maud Piers & Christina Aschauer (eds.) Publication Date: 2018
• The CISG Advisory Council Opinions by Ingeborg Schwenzer (ed.) Publication Date: 2017
• Contributory Fault and Investor Misconduct in Investment Arbitration by Martin Jarrett Publication Date: 2019
• Cross-Examination in International Arbitration: Nine Basic Principles by Kaj Hober Publication Date: 2014
• Fair and Equitable Treatment: Its Interaction with the Minimum Standard and its Customary Status by Patrick Dumberry Publication Date: 2018
• Good Faith in International Investment Arbitration by Emily Siporski Publication Date: 2019
• Guerrilla Tactics in International Arbitration by Günther J. Horvath, Stephan Wilske (eds.) Publication Date: 2013
• The Guide to Challenging and Enforcing Arbitration Awards by J William Rowley (ed.) Publication Date: 2019
• The Guide to Damages in International Arbitration by John A. Trenor Publication Date: 2018 (3rd ed.)
• Hardship and Force Majeure in International Commercial Contracts: Dealing with Unforeseen Events in a Changing World by Fabio Bortolotti; Dorothy Ufot Publication Date: 2019 Note: This is also available as an eBook through KluwerArbitration. .
• Injunctive Relief and International Arbitration by Hakeem Seriki Publication Date: 2015
• International Arbitration and Forum Selection Agreements: Drafting and Enforcing by Gary Born Publication Date: 2016 (5th ed.)
• Interpretation of Contracts in Comparative and Uniform Law by Ahmet Cemil Yıldırım Publication Date: 2019 Note: This is also available as an eBook through KluwerArbitration. .
• Jurisdiction, Admissibility, and Choice of Law in International Arbitration: Liber Amicorum Michael Pryles by Neil Kaplan & Michael Moser (eds.) Publication Date: 2018 Note: This is also available as an eBook through KluwerArbitration.
• Party-Appointed Arbitrators in International Commercial Arbitration by Alfonso Gomez-Acebo Publication Date: 2016 Note: This is also available as an eBook through KluwerArbitration. .
• Pleading in Arbitration: A Practitioner's Guide by Steven Walker and Iain K. Clark Publication Date: 2017
• The Powers and Duties of an Arbitrator: Liber Amicorum Pierre A. Karrer by Patricia Shaughnessy, Sherlin Tung (eds.) Publication Date: 2017
• Principles of Evidence in Public International Law as Applied by Investor-State Tribunals: Burden and Standard of Proof by Kabir Duggal, Wendy W. Cai. Publication Date: 2019
• Procedure Shopping through Hybrid Arbitration Agreements: Considerations on Party Autonomy in Institutional International Arbitration by Nathalie Lendermann Publication Date: 2018
• Protection of Legitimate Expectations in Investment Treaty Arbitration: A Theory of Detrimental Reliance by Teerawat Wongkaew Publication Date: 2019
• Rules of Evidence in International Arbitration: An Annotated Guide by Nathan D. O'Malley Publication Date: 2019 (2nd ed.)
• Shifting Paradigms in International Investment Law: More Balanced, Less Isolated, Increasingly Diversified by Steffen Hindelang and Markus Krajewski Publication Date: 2016
• The Use of Economics in International Trade and Investment Disputes by Marion Jansen, Joost Pauwelyn and Theresa Carpenter (eds.) Publication Date: 2017
• What Counsel in Arbitration Can Do, Must Do, or Must Not Do by Vanessa Foncke et al. (eds.) Publication Date: 2015

Arbitration in the International Legal Order: Books/Treatises

The books listed below focus more on international law generally and include one or more chapters or sections specifically dedicated to arbitration.

• Building a Treaty on Business and Human Rights: Context and Contours by Surya Deva and David Bilchitz Publication Date: 2017
• Critical International Law: Postrealism, Postcolonialism, and Transnationalism by Prabhakar Singh, Benoît Mayer (eds.) Publication Date: 2014
• Irresolvable Norm Conflicts in International Law: The Concept of a Legal Dilemma by Valentin Jeutner Publication Date: 2017
• Principles of International Economic Law by Matthias Herdegen (ed.) Publication Date: 2016 (2nd ed.)
• Reconceptualising the Rule of Law in Global Governance, Resources, Investment, and Trade by Photini Pazartzis, Maria Gavouneli, Anastasios Gourgourinis, and Matina Papadaki (eds.) Publication Date: 2016
• Transnational Commercial Law by Maren Heidemann Publication Date: 2019

Arbitration Journals

• American Review of International Arbitration
• Arbitration International
• Dispute Resolution Journal
• European Arbitration Review
• European International Arbitration Review
• European Investment Law and Arbitration Review
• ICC Dispute Resolution Bulletin
• ICSID Reports
• ICSID Review
• International Arbitration Law Review
• International Commercial Arbitration
• International Quarterly
• International Sports Law Journal
• Journal of International Arbitration
• Journal of International Dispute Settlement
• Journal of International Economic Law
• Journal of Private International Law
• Journal of World Investment and Trade
• Journals in KluwerArbitration Arbitraje: Revista de Arbitraje Comercial y de Inversiones, ASA Bulletin, Asian Dispute Review, Asian International Arbitration Journal, Belgian Review of Arbitration, BCDR International Arbitration Review, Indian Journal of Arbitration Law, International Commercial Arbitration Review, International Journal of Arab Arbitration, Journal of International Arbitration, Revista Brasileira de Arbitragem, Review de l'Arbitrage, and Spain Arbitration Review
• Journals in Kluwer Law Online Includes Arbitration, ASA Bulletin, Asian International Arbitration Journal, Journal of International Arbitration, Revue de l'arbitrage, World Trade and Arbitration Materials, and more.
• Mealey's International Arbitration Quarterly Law Review
• The Middle Eastern and African Arbitration Review
• Swiss International Arbitration Law Reports
• Vindobona Journal of International Commercial Law and Arbitration

Online Sources for General Arbitration Research

• Chambers Practice Guides: International Arbitration 2019
• GlobaLex Guide to International Commercial Arbitration
• GlobaLex Guide to Investor-State Arbitration

Arbitration Treaties

Print sources.

• International Arbitration Treaties by Loukas Mistelis, Laurence Shore, Monique Sassons, general editors ; Hans Smit, founding editor Publication Date: 2010- (Looseleaf)

Electronic Sources

• Bilateral Investment Treaties (BITs) (KluwerArbitration)
• Database of Investment Treaties (ICSID)
• International Investment Agreements Navigator (UNCTAD)
• International Arbitration: Treaties (Westlaw) Coverage begins with 1952 (Europe), 1992 (NAFTA), and 1994 (GATT).
• Multilateral Treaties (Conventions) (KluwerArbitration)
• Treaties & Rules (Investor-State Law Guide)
• UNCITRAL Texts and Status
• Uruguay Round Agreements (Worldtradelaw.net)
• WTO Legal Texts (WTO)

Arbitration Rules

• Analytical Commentary to the UNCITRAL Arbitration Rules by Peter Binder Publication Date: 2013
• Arbitrating under the 2014 LCIA Rules: A User's Guide by Maxi Scherer Publication Date: 2015 Note: This is also available as an eBook through KluwerArbitration .
• Arbitration Rules -- International Institutions by Loukas Mistelis, Laurence Shore, Stavros Brekoulakis, general editors ; Hans Smit, founding editor Publication Date: 2010 (3rd. ed., looseleaf)
• A Commentary on the LCIA Arbitration Rules 2014 by Shai Wade et al. Publication Date: 2015
• Comparison of International Arbitration Rules by Robert H. Smit Publication Date: 2013 (4th ed.)
• A Guide to the HKIAC Arbitration Rules by Michael J. Moser Publication Date: 2017
• A Guide to the ICDR International Arbitration Rules by Martin F. Gusy Publication Date: 2019
• A Guide to the SIAC Arbitration Rules by John Choong, Mark Mangan, Nicholas Lingard Publication Date: 2018 (2nd ed.)
• Institutional Arbitration: Article-by-Article Commentary by Rolf A. Schütze et al. Publication Date: 2013 Coverage: ICC rules -- DIS rules -- Vienna rules -- Swiss rules -- LCIA rules -- MKAS rules -- CIETAC rules -- SIAC rules -- KLRCA rules -- IAR -- SCC rules -- DIAC rules -- ICSID rules -- UNCITRAL rule
• IBA Rules of Evidence: Commentary on the IBA Rules on the Taking of Evidence in International Arbitration by Tobias Zuberbühler et al. Publication Date: 2012
• The UNCITRAL Arbitration Rules: A Commentary by David D. Caron Publication Date: 2013
• American Arbitration Association (AAA) International Centre for Dispute Resolution (ICDR) - Rules, Foms, and Fees
• Financial Industry Regulatory Authority (FINRA) Arbitration Rules
• International Centre for Settlement of Investment Disputes (ICSID) Convention Arbitration Rules
• International Chamber of Commerce (ICC) Arbitration Rules
• Permanent Court of Arbitration -- PCA Rules
• United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules

Arbitration Awards and Other Proceeding Documents

Arbitration awards and documents related to arbitration proceedings can be notoriously difficult to find.  Below is a list of options you can try.  To suggest other sources that are not listed below, please contact [email protected].

• ASA Bulletin (Kluwer Law International) This publication from the Swiss Arbitration Association includes arbitral awards and orders under various auspices including ICC, ICSID, and the Swiss Chambers of Commerce (“Swiss Rules”).
• Case Law on UNCITRAL Texts (CLOUT) This is a system for collecting and disseminating information on court decisions and arbitral awards relating to the Conventions and Model Laws that have emanated from the work of the UN Commission on International Trade Law (UNCITRAL).
• CISG Database (Pace Law School Institute of International Commercial Law) Free electronic database that includes cases/awards on the CISG; can be searched or browsed by country. Also includes a UNCITRAL case digest.
• FINRA Arbitration Awards Online FINRA's Arbitration Awards database enables users to perform Web-based searches for FINRA and historical NASD arbitration awards free of charge, seven days a week. Also available through the site are historical awards for New York Stock Exchange, the American Stock Exchange, the Philadelphia Stock Exchange, and the Municipal Securities Rulemaking Board.
• Histoire sommaire et chronologique des arbitrages internationaux, (1794-1900)
• History and Digest of the International Arbitrations to Which the United States Has Been a Party 6-volume historical treatise and reporter by John Bassett Moore, published in the late 1800s and available through HeinOnline.
• ICC Court of Arbitration Bulletin Includes excerpts from ICC arbitral awards, official notes, reports and guidelines on dispute resolution practice and procedure, statistics, news, and articles by eminent arbitration specialists.
• ICSID Arbitration Cases Database Includes more than 700 cases; filtering options include case status, case type, applicable rules, stage of proceeding, dispute subject, and more.
• International Arbitration Forum Database - Awards Established in 2008, one of the biggest free online databases for lawyers and scholars seeking articles and cases related to international arbitration. Search here for arbitration awards.
• International Investment Arbitration and Public Policy (IIAPP) Includes a searchable database of investment treaty cases up to May 2010.
• International Legal Materials (ILM) ILM is a publication of the American Society for International Law. It publishes legal documents from various courts and tribunals around the world, including arbitral organizations like the ICSID arbitral tribunal.
• ITALAW Free online current awareness service for arbitration awards, decisions, and materials.
• Jus Mundi Includes arbitration awards from multiple international tribunals.
• KluwerArbitration KluwerArbitration includes an extensive database of arbitration awards issued by international arbitration tribunals, including the ICC, ICSID, ICDR, the WIPO Arbitration and Mediation Center, LCIA, Cour Permanente d'Arbitrage, AAA, and many more.
• Lloyd's Arbitration Reports Coverage = 1988-1992.
• Oxford Public International Law Database: Arbitral Cases Database of more than 1,000 arbitral awards and decisions from various sources.
• Permanent Court of Arbitration -- Cases Online database of cases heard by the PCA, including inter-state arbitrations and investor-state arbitrations.
• Reports of International Arbitral Awards Published by the United Nations. For more information about this resource, visit http://legal.un.org/riaa/ .
• World Trade and Arbitration Materials Includes reports of arbitration awards related to international trade; published several times a year.

Print Materials

• The 1958 New York Convention in Action by Marike Paulsson Publication Date: 2016 Note: This is also available as an eBook through KluwerArbitration. .
• Guide on the Convention on the the Recognition and Enforcement of Foreign Arbitral Awards by UNCITRAL Secretariat ; Emmanuel Gaillard and George A. Bermann, editors Publication Date: 2017
• New York Convention: Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958: A Commentary by Reinmar Wolff (ed.) Publication Date: 2012
• Recognition and Enforcement of Foreign Arbitral Awards: The Interpretation and Application of the New York Convention by National Courts by George Bermann (ed.) Publication Date: 2017

Online / Electronic Sources

• http://newyorkconvention1958.org/ This website was created to host information on the implementation of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958, with a view of promoting its uniform and effective application throughout the world. It provides access to the case-law from a number of jurisdictions on the application of the Convention by domestic courts as well as information on the ratification of the Convention by selected States.
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Kluwer Arbitration Blog

The contents of journal of international arbitration, volume 39, issue 3 (june 2022) – special issue on empirical work in commercial arbitration.

We are happy to inform you that the latest issue of the journal is now available and includes the following contributions:

Roger P. Alford, Crina Baltag, Matthew E.K. Hall and Monique Sasson, Empirical Analysis of National Courts Vacatur and Enforcement of International Commercial Arbitration Awards

The empirical research in this article relies on a data set including all national court decisions on recognition, enforcement and setting aside (vacatur) of international commercial arbitration awards available in the Kluwer database that were rendered from 1 January 2010 to 1 June 2020.Within the time parameters of this study, there were 504 vacatur actions and 553 offensive recognition and enforcement actions. Those decisions were rendered by national courts in 74 different jurisdictions. The research coded every argument raised by defendants challenging the recognition and enforcement of awards based on grounds set forth in Article V of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, as well as every argument raised by claimants to challenge awards based on the grounds set forth in Article 34 of the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. In addition to these grounds, several others, outside the two instruments mentioned above, have been identified in the data set. The results of the research are presented in the article below. An overarching conclusion would be that courts overwhelmingly enforce foreign arbitration awards, in 73% of the cases in the data set, without significant variations between courts in various jurisdictions, and, respectively, overwhelmingly refuse to vacate arbitral awards, with courts vacating in only 23% of cases, again without significant variations between courts in various jurisdictions.

Maxi Scherer and Ole Jensen, Empirical Research on the Alleged Invalidity of Arbitration Agreements: Success Rates and Applicable Law in Setting Aside and Enforcement Proceedings

This article is based on a data set of over 1,000 judicial decisions in setting aside, recognition and enforcement proceedings. Although sometimes cited as one of the most common grounds for setting aside an award or refusing its recognition and enforcement, the invalidity of the arbitration agreement was raised in less than one-fifth of those decisions. It was confirmed in under one-third of those cases. This article examines which arguments for invalidity were more successful than others and how courts have determined the law applicable to the (in)validity of the arbitration agreement. Notably, less than half of the courts in this data set have engaged in a meaningful conflict of laws analysis. Where they have done so, there does not appear to be a consensus on how the law applicable to the arbitration agreement should be determined and what significance a choice of law clause in the main contract has in this regard.

Loukas Mistelis and Giammarco Rao, The Judicial Solution to the Arbitrator’s Dilemma: Does the ‘Extension’ of the Arbitration Agreement to Non-Signatories Threaten the Enforcement of the Award?

This article contributes to the debate on non-signatories by relying on the Kluwer Research project. In particular, through the raw data underlying the Kluwer Research, we have identified cases at the enforcement stage, in which courts had to decide whether, despite the apparent lack of consent, non-signatories were correctly brought into arbitration proceedings. In our view, the analysis of those courts’ decisions is perhaps a reminder that when considering non-signatory issues, the relevant facts of the case are always what matters the most. Non-signatories’ involvement in the relationship underlying the dispute is essential, absent a clear expression of it in the contract. We believe that the results show the judicial solution to the arbitrator’s dilemma, that is, the due consideration of the circumstances of any case, disregarding the rigid application of any theories.

Laurence Shore, Vittoria De Benedetti and Mario de Nitto Personè, A Pathology (Yet) to Be Cured?

Fifty years ago, Frédéric Eisemann coined the expression ‘pathological clause’ to refer to arbitration clauses that substantially deviate from the essential requirements of a model clause. However, arbitration practitioners have not yet learned their lesson; the matter of pathology is far from being outdated. Arbitration clauses may be pathological if they do not provide for mandatory referrals to arbitration proceedings, or do not meet certain other requirements to provide for a workable arbitration procedure, or contain a reference to non-existing arbitral institutions and/or arbitral rules, or provide for a proceeding administered by an arbitral institution pursuant to different institutional rules. In most instances, the competent supervisory court (or the arbitral tribunal or institution dealing with a defective clause) seeks to cure these pathologies. Arbitral tribunals and national courts generally try to ascertain whether the parties’ real intention is to arbitrate, and, if that to arbitrate is apparent, to give effect to and enforce an otherwise invalid arbitration clause. In any case, parties should not blindly rely on tribunals’ and courts’ tendency to uphold such clauses; the only safe approach is to avoid pathology.

Cecilia Carrara, Conflicts of Interests

The Kluwer Research comprises over 1,000 cases in the period 2010-2020. These cases do not include challenges in particular, but include vacatur and enforcement actions. Out of a total of 504 vacatur cases, in approximately eighty cases arguments related to the composition of the arbitral authority have been made. As regards enforcement, out of a total of 589 enforcement actions, in sixty-one cases these arguments have been made.

The effectiveness of arbitrators’ impartiality and independence is ensured by an ex ante positive obligation of transparency, i.e., the duty to disclose any circumstances that may give rise to independence and impartiality, and an ex post sanctioning mechanism, which enables the parties to challenge an arbitrator who doesn’t comply with those requirements. Disclosure allows parties to verify the arbitrators’ compliance with the requirements of independence and impartiality. The challenge, however, remains the necessary procedure to establish the lack of such requirements. In most countries, the test of the arbitrators’ impartiality and independence is based on the criterion of justifiable doubts.

Raising arguments related to conflicts of interest after the award is rendered, either in vacatur or enforcement actions, is only successful in order to block the enforcement/vacating the award in very few instances. Thus, parties should timely raise all of their objections at an early stage, rather than after the award is rendered.

Crina Baltag, Article V(1)(e) of the New York Convention: To Enforce or Not to Enforce Set Aside Arbitral Awards?

The recognition and enforcement of arbitral awards which are set aside at the seat continues to be a ‘hot’ topic, triggered by the increasing number of cases in which the prevailing party in the arbitration attempts to enforce such award in various jurisdictions where the assets of the award debtor are located. Such jurisdictions may have different approaches to the application of Article V(1)(e) of the New York Convention providing for the possibility that courts refuse recognition and enforcement of arbitral awards already set aside. Kluwer Research confirms, that, first, this ground under Article V(1)(e), while the most successfully argued ground under Article V of the New York Convention, is only upheld in 34% of the cases, and that, second, there are diverse approaches of the national courts in assessing such ground, ranging from deference to the courts of the seat of arbitration, to a truly delocalized, transnational approach to the recognition and enforcement of awards.

Monique Sasson, Public Policy in International Commercial Arbitration

This article analyses the decisions on public policy contained in the Kluwer Arbitration database. The database includes more than 1,000 cases. Objections based on public policy have been raised in 44% of recognition and enforcement proceedings and in 38% of setting aside proceedings. The success rate of these objections was low, 19% and 21%, respectively. This article discusses the decisions in which these objections were successful, distinguishing between the three International Law Association categories: (i)‘violation of fundamental principles, procedural public policy, or substantive public policy’; (ii) ‘ loi de police ’; and (iii) ‘violation of international obligations’ (though there were no successful objections in this category). The article concludes that the Kluwer Research confirms that public policy should only be applied in a limited set of circumstances, though it also features a few exceptions to the narrow construction of the concept of public policy.

Elina Mereminskaya, Latin America Isn’t ‘Going South’: A Qualitative Sampling Analysis

This article analyses a qualitative sample of recent judicial decisions from Argentina, Colombia, Costa Rica, Chile, the Dominican Republic, Mexico and Peru. Almost all decisions in the sample show ordinary courts’ deference towards arbitration. As long as the courts operate within the framework established by the UNCITRAL Model Law or the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, arbitral awards enjoy a high level of autonomy and protection against unjustified attacks. This allows for conclusion that Latin America isn’t ‘Going South’ on its path into global arbitration realm.

At the same time, in almost all jurisdictions included in the sample, Constitutional courts and Tribunals and constitutional actions for protection of fundamental rights play an extremely – indeed excessively – relevant role. Admittedly, these constitutional actions have been mainly unsuccessful and have not led to amendments of arbitral awards. Nonetheless, its sole availability generates legal uncertainty and undermines the reliability of arbitration as a mechanism of dispute resolution. It seems to be the last hurdle that Latin American countries will have to overcome before they are considered safe and appealing seats for international arbitration.

Ioana Knoll-Tudor, Recognition or Enforcement and Annulment of Arbitral Awards in France: An Analysis of the Kluwer Research Results

The results of the Kluwer Research showed that, despite Paris being one of the most popular arbitration seats, French courts were the least likely to recognize and enforce an arbitral award, but also those with the highest number of vacated arbitral awards. The article analyses these results and offers some possible justifications for them.

Concerning the enforcement and recognition procedures, the study only included reasoned decisions. The specificities of the French procedure however result in most of the decisions not being reasoned (the exequatur procedure is an ex parte procedure, only orders refusing the enforcement are reasoned) and the decision of the Court of Appeal dismissing an application to set aside an award (for awards rendered in France) has the effect of automatically enforcing the award. Therefore, analyzing only reasoned decisions is not representative of the French courts’ approach. The article also analyses the grounds invoked by the claimants and their respective success rates, especially in comparison with other jurisdictions.

Concerning the annulment procedures, France ranks as the country with the highest number of vacated awards. Indeed, while reviewing the number of annulment actions initiated in recent years before the Paris Court of Appeal, we concluded that the number of actions has doubled, with around 25% of successful annulment actions.

As to the grounds for annulment relied upon by the claimants and their respective rates of success, the Kluwer Research revealed that the most relied upon grounds in France (authority not in accordance with the law and violation of public policy) were also the most successful ones.

Arthur Dong and Alex Yuan, An Empirical Study on Recognition and Enforcement of Foreign, Hong Kong, Macau, and Taiwan Arbitral Awards in Mainland China

In this report we analyzed publicly available cases decided by courts of Mainland China (‘PRC courts’) from 2001 to 2021 in which the court refused or rejected party’s application for recognition and enforcement of foreign (including Hong Kong, Macau, and Taiwan) arbitral awards, totaling thirty-seven cases. Here we provide factual summary for each case and conducted statistics with respect to their arbitration-related characteristics and PRC court’s ground of decision. With this report, one can see that PRC courts are extremely cautious in refusing or rejecting recognition and enforcement of foreign arbitral awards. Lack of valid arbitration agreement, and violation of arbitration agreement/arbitration rules/law of the seat, are the two major causes that led to the PRC Courts’ refusal of recognition and enforcement. However, one should note that non-compliance of national laws in Mainland China may undermine recognition and enforcement of foreign arbitral awards.

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International Commercial Arbitration Research Guide

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Specialized Resources on International Commercial Arbitration Law

In the columns below, you will find a selection of secondary sources that focus on narrower topics within the field of international commercial arbitration law.  To locate additional resources from the Georgetown Law Library's collection, use the Advanced Search and select Law Library Catalog .  Then select Subject as the search field and enter one of the following subject headings in search box:

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International Commercial & Investment Arbitration Research: Getting Started

• Getting Started
• International Treaties & Agreements
• International Organizations
• Awards & Decisions
• National Laws

International commercial arbitration is a private dispute resolution mechanism for resolving cross-border commercial disputes generally based on a contract between the parties. Investment arbitration is a dispute resolution method generally based on a bilateral investment treaty (BIT), a national investment law, or investment agreement.

This guide provides a comprehensive overview of primary and secondary sources that may be utilized to research the general topics of international commercial arbitration and international investment arbitration as well as more specific subtopics.  Included are introductory materials, bibliographies, treatises, commercial databases, and free websites.  Suggested resources for locating arbitral awards and decisions are also listed.

Law360: International Arbitration

Law360  is a popular legal news and current awareness resource covering over 40 different practice areas, including international arbitration. The UIC law library's Law360 subscription allows users to receive daily newsletter alerts on legal topics of their choosing. Law360 is available from any on-campus computer or from off campus with proxy authentication (current UIC Law ID and password).  Ask a reference librarian for help setting up an account. 

Bibliographies

Bibliographies of published materials related to international commercial arbitration are listed below. Note that not all publications included in these bibliographies are available in English.

• Consolidated Bibliography of Recent Writings Related to the Work of UNCITRAL (1968-Present): International Commercial Arbitration and Conciliation
• 1958 New York Convention Bibliography
• Pace Law School Institute of International Commercial Law: International Sales Law Bibliography
• Peace Palace Library: International Arbitration
• TRANS-LEX.org Bibliography

Introductory Materials (Electronic)

• ASIL Guide to Electronic Resources for International Law: International Commercial Arbitration Posted on the American Society of International Law (ASIL) website, this is a comprehensive research guide for international commercial arbitration, authored by Washington, D.C. law firm librarian Gloria Miccioli. The guide includes extensive lists of links to arbitral institutions and the texts of national arbitration statutes as well as descriptions of applicable commercial databases. Systematically updated and expanded.
• International Arbitration between Foreign Investors and Host States (Investor-State Arbitration) Hernando Otero and Omar García-Bolívar, both international attorneys with experience as investment arbitrators, authored this research guide on international investment arbitration. Published on New York University Law School's GlobaLex site in March/April 2022, the guide includes tips on locating awards and decisions.
• UPDATE: International Commercial Arbitration Published in September/October 2022 on GlobaLex by Charles Bjork, this introductory guide covers all aspects of international commercial arbitration.
• International Arbitration: Peace Palace Library Research Guide This online guide to researching international commercial arbitration includes a bibliography and "librarian's choice" suggestions for secondary research. The Peace Palace Library specializes in international law and services institutions in The Hague, including the International Court of Justice, the Permanent Court of Arbitration, and the Hague Academy of International Law.
• International Commercial Arbitration Research Guide Part of the Georgetown Law Library's series on legal research, this guide includes lists of treatises and periodical literature related to international commercial arbitration.
• S.I. Strong, "International Commercial Arbitration: A Guide for U.S. Judges," Federal Judicial Center, 2012. With a target audience of U.S. federal judges, this guide provides a practical overview of ICA in less than 100 pages.

Introductions to International Commercial Arbitration (Print)

Howard M. Holtzmann Research Center for the Study of International Arbitration and Conciliation

The American Society of International Law (ASIL), headquartered in Washington, DC, launched the Center in 2013 to honor Judge Howard M. Holtzmann.  The Center houses a collection of research materials on international arbitration, including Judge Holtzmann’s personal library and papers. The Center also offers a regular program of events, including a speaker series featuring leading figures in the field of international arbitration. 

Practical Law: Arbitration

Practical Law is a Thomson Reuters current awareness service that is available to UIC law students and faculty with their Westlaw subscriptions.  Practical Law:  Arbitration is a comprehensive suite of resources that includes practice notes, drafting notes and examples, and overviews of topics such as investment treaty arbitration.  There is an  "Arbitration Global Guide" and a "Browse by Country" tab.  UIC law students and faculty may sign up for e-mail updates. 

UCIA, Universal Citation in International Arbitration

Online Translators

English translations of legal materials, including foreign statutes, are often difficult to locate and can be unreliable.  Only in rare instances are authoritative English translations available.  If authoritative versions are not available, look for "official" translations that are created by, or for, a government organization.  Further, look for synoptic translations, which allow for side-by-side comparisons of the vernacular with the English translation. 

Many online translators are available on the WWW, but these should be used with caution since web translators do not generally include specialized legal or commercial vocabulary.  Online translators, however, may be of some help in getting the general sense of a document or passage.  Examples of WWW translators are:

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• Linguee Linguee matches phrases already translated on the WWW.
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Arbitration and Conciliation Act, 1996 - An Overview

23 Pages Posted: 19 May 2020

Aarushi Dhingra

GALGOTIAS UNIVERSITY

Date Written: April 22, 2020

The significant increase in the economic development of nations over the last few decades has been accompanied by a considerable increase in the number of commercial disputes as well. As a result, alternative dispute resolution mechanisms including arbitration have become more crucial for businesses operating in India as well as those during businesses with Indian firms. Keeping in mind the broader exploration between the quality of legal performance and economic growth, this paper is an attempt to critically evaluate arbitration in India as a legal institution. In this paper, the prime position in dispute resolution is discussed. This paper examines and evaluates the International Arbitration Regime in India under 1940 and 1996 Acts, and also discusses the main concepts like arbitrator, arbitration agreement, arbitral awards, foreign awards, public policy etc. This paper also deals with recognition and enforcement of the award and identifies the Indian regime governing the domestic, and International Commercial Arbitration. In International commercial arbitration contracts are frequently applied ADR techniques, especially arbitration is seen as a way out arbitration as a private, independent, and neutral system, time and cost benefits that are felt to be the hallmarks of the arbitration. Arbitration is increasingly becoming popular within the parties to settle their international as well as domestic commercial disputes.

Keywords: Arbitration and Conciliation, Arbitral Award, Foreign Award, Domestic Arbitration, International Commercial Arbitration

Suggested Citation: Suggested Citation

Aarushi Dhingra (Contact Author)

Galgotias university ( email ), do you have a job opening that you would like to promote on ssrn, paper statistics, related ejournals, conflict studies: prevention, management & resolution ejournal.

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