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Oxford Law Vox: The evolution of international arbitration

As part of the launch of the sixth edition of Redfern and Hunter on International Arbitration, one half of the book’s authorial team Nigel Blackaby and Constantine Partasides QC met up with Law Vox podcast host George Miller. Together they discussed the evolution of international arbitration and the influential role Redfern and Hunter have played in the field.

Below are selected excerpts from their wide-ranging discussion, and you can also check out the full discussion via the podcast below.

The podcast opens with a comment from Constantine on what he believes is one of the appeals of working in the field.

Constantine Partasides: “… every international arbitration is effectively a microcosm of potential procedural reform. It’s what you make of it. You choose in each case, you don’t have the white book, you don’t have a set of federal, procedural rules. So you can choose to avoid something, and it may well be that it is in your client’s interests to do so. So it’s not a particular prescription, it’s a state of mind if you like.”

Amongst other topics, the process of how this “microcosm of potential reform” becomes a macrocosm in international arbitration is discussed, as well as the challenges faced in a field that is becoming “more complex, more legalistic, more institutionalised, and more expensive.”  Such trends include the increasing frequency of challenges made to awards and arbitrators.

Nigel Blackaby: “It has become almost a knee jerk reaction, I think possibly being led by the investment arbitration world, that whenever you lose a case you seek to challenge the award. And we’ve seen certain states that have challenged every award that has gone against them. The sense that it should be an extraordinary remedy to be employed in the event where there is some clear breach of a rule of due process seems to have been put by the wayside. And I think some of the panels that are hearing these challenges, in exit cases for example, are beginning to realise this and taking a stricter approach. I think that has spilled across into commercial arbitration as well.”

The history of international arbitration is also addressed as an important factor in determining the position of international arbitration today. Both Constantine and Nigel answer the question, ‘what life stage do you think arbitration is now at?’

Constantine Partasides: “I like to think it’s still in its early stage. And that we, in the way our forefathers were, will be considered trailblazers who helped it develop. It’s difficult to call international arbitration anything more than mainstream now, so perhaps a little late to call it adolescent but too early to call it old age.”

Nigel Blackaby: “It’s an institution which has a very long history. Its original history of course stems from state to state disputes, including disputes arising out of personal challenges, investors, or those who had lost their debts in the American civil war, when the first mixed commissions were set up under the Jay commission. So it goes way back to the eighteenth-century. The frequency with which it has been used to resolve commercial disputes is really something much more recent, and ironically the frequency with which it is now being used to resolve disputes between investors and states … has really only started since the 1990s. We had the first decision in a bilateral investment treaty case in 1990 – that’s how young this system is in terms of investment arbitration.”

In regards to Redfern and Hunter on International Arbitration, Nigel and Constantine also describe the ethos and aim of the book as a whole.

Nigel Blackaby: “It’s a book about the art of arbitration – it’s a synthesis. It’s not attempting to be completely comprehensive or exhaustive. It goes through the process of arbitration in a logical, chronological way and what it does is it seeks to introduce key concepts using illustrations from across the world … how we are moving towards a general international consensus that you find similar results on opposite ends of the planet, from countries that are at different levels of development … it’s a truly international book about practising international arbitration.”

Constantine Partasides: “For me what distinguishes the book … are two things. One is the style which is very synthetic, and deliberately so. The other is that what the book tries to communicate is a method, an approach to international arbitration. It’s an artisanal approach rather than an industrial approach to something that we hope is still seen as much of an art as it is a science.”

To hear the full interview with Constantine and Nigel you can listen to their podcast episode on the Oxford Law Vox SoundCloud.

You can also learn more about the inception of Redfern and Hunter on International Arbitration via a video interview with co-authors Alan Redfern and Martin Hunter.

Featured image credit: A Globe, by Mark Doliner. CC-BY-2.0 via Flickr.

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