International arbitration expert Loukas Mistelis talks to George Miller about current arbitration issues. Together they discuss how the international arbitration landscape has developed, how arbitration theory has attempted to catch up with practice, and ask whether the golden age of arbitration is now passed.
Below are selected excerpts from their wide-ranging discussion in the twelfth episode of the Oxford Law Vox podcast series. You can download the full podcast via Oxford Law Vox. Amongst the many aspects of international arbitration discussed in their conversation, Loukas and George take a look at the key issue of enforceability and relationships with existing jurisdictions.
“I think what attracted parties to arbitration originally was that arbitral awards were faster than national court decisions. That continues to be the case. Although I have argued that perhaps we are in the post-golden era of arbitration, where the first 50 years of the New York convention from 1958 to 2008 were the golden years, the fact remains that the United States does not have a single treaty with any other country for their completion of judgements. And the same is true for Japan to a large extent. So outside the European Union the movement of judgements is an issue which is quite challenging to parties who have prevailed in a case but still have to enforce them, therefore they still have to have some court procedures in another jurisdiction. Arbitration has resolved this issue, and has resolved it in quite a successful way. Of course the enforcement of awards where the parties do not voluntarily comply has to be done through the courts. But this is fairly limited – typically in about 10% of the cases that there will be some sort of court action.”
Loukas also reflects on the changes that can be seen as arbitrations become more costly and more complex, and whether this is leading parties to consider alternate dispute resolution in a way that perhaps they were less inclined to ten years ago:
“I think arbitration has become a victim of its success. It became, and still is, the natural choice for cross-border disputes. But at some point parties started feeling that their interests were not best served by the arbitration process. Too much money goes to the lawyers, quite a bit of money goes to the arbitrators and arbitration institutions, and it takes quite some time. I think the average duration of an arbitration would perhaps be anywhere between 15 and 18 months. That is much quicker than many national legal systems, but is slower than other legal systems, like for example Japan or Germany or perhaps the United States. In this country you could go through all these systems in three years – sometimes you can only go through a single arbitration in three years … the problem is simply that mediation, or alternate dispute resolution, is not suitable for all cases.”
Before the conversation turns to the final topic of the Oxford International Arbitration Series, Loukas addresses the question of whether the often confidential nature of proceedings and awards contributes or hinders the practice of business:
“Most international commercial cases … will go to arbitration. So the majority of lawyers would not be able to be privy to the development of commercial law as it develops for arbitration. Now the traditional arbitral defensive answer to that was that arbitration is a result of the dispute between the two parties, so they do not think in the bigger context of making laws for future generations. But collectively they do. And there this becomes the duty not of the arbitrators, perhaps not of the parties, but the duty of the arbitration institutions to make sure that they communicate to the bigger audience what the decisions are about. For example the International Chamber of Commerce has been by producing sanitised extracts of awards in particular topics … It doesn’t give the answers for everything but certainly we have more awards published in some form now than quite a few years ago. I think that’s started to change effectively with the ICCA Yearbook … but for sure the expectation is that there will be more and more publication of awards from this time forward.”
To hear the full interview with Loukas Mistelis, and to listen to more podcasts from a range of law experts, check out Oxford Law Vox on SoundCloud.
Feature image credit: The Night Lights of Planet Earth, by woodleywonderwork. CC-BY-2.0 via Flickr.