Arbitration, like the national court, has evolved over time. The system has continued to be an effective and efficient method of resolving disputes, especially in international commercial-related disputes. While critics have criticized the system for different reasons, it has proven to be a faster and more enforceable method of helping disputing parties get a fair hearing barely provided in National courts, especially in a situation of Investor-state dispute settlement.
Despite all the good of arbitration and its position as a very effective and efficient method of settling disputes, there has been criticism from a number of bodies on how its power of enforceability, the possibility of arbitrators being biased. While these and other concerns are mostly more sentiments than factual, the truth is that there are indeed issues in arbitration that are categorized under the umbrella term of Contemporary Issues in International Arbitration.
Even the biggest arbitrators in the Arbitration world acknowledge the Contemporary problems in International Arbitration, and most arbitration institutions have tried to set up ways to tackle these challenges. Top institutions have set up guidelines and policies that attempt to tackle these issues in order to make the system more trustworthy and effective in resolving disputes.
While many concerns face the system, the more popular and Current Issues in International Arbitration usually stem from certain areas and policies. The Global pandemic of 2020 and its leftovers have only made this concern obvious. This article will be considering some of these issues.
Current Issues in International Arbitration
Arbitrators’ Duties of Disclosure
One of the areas being highly discussed in arbitration is transparency. One of the ways this is being pursued is via Arbitration obligation to fully disclose to a case and allow disputing parties to unanimously decide if they would go with that arbitrator continuing with the case or not.
Arbitration institutions hold arbitrators and arbitral tribunals to extremely high standards and expect all professionals to disclose their relationship to any of the parties or to the case to avoid any situation that could lead to a bias award enforcement.
In 2020 alone, there were a number of cases from different states and jurisdictions globally in which Arbitrators’ Disclosure Duties were brought to the Spotlight. The cases addressed the arbitrator’s duties in disclosing conflicts. Also, in 2021 there has been an increasing number of Pro-transparency approaches and standards internationally that encourage professional arbitrators to reveal their professional relationship with every party in a dispute. These approaches are one of the many stances being taken to ensure best practices in arbitration.
While many awards were overturned in the event of lack of disclosure of arbitrators, there is still more to do to curb the trend and ensure that arbitration looks more appealing.
Innovation and Virtual arbitration
The Covid-19 pandemic showed and has continued to show why Virtual arbitration must be the way going forward. While Virtual arbitration may increase the advent of cyber theft when information is carelessly handled digitally, proper orientation can drop the concern. Remote hearings are a significant evolution that could presently happen with the arbitral system. Both arbitration institutions like ICC have laid down policies on which they can remote hearing can be implemented.
As arbitrators accept the use of technology to help drive quick and fair resolution, hackers and data thieves have also presented a challenge to the system. There have been several instances of data theft and the compromise of arbitration sites by hackers. These extremely disturbing situations have triggered a mass demand among practitioners for lasting solutions to be effected such that easy loopholes in systems are fixed.
The present solutions for no are judges giving charges to disputing parties and practitioners to prioritize protecting information. There are currently some voices that are asking for judges to criminalize actions of deliberate data compromise by active parties in a case. While these acts are yet to be agreed upon and concluded, the call shows that cyber events will be drastically reduced.
Liability of Arbitrators
A serious ongoing concern of arbitrators is on how much protection they get for presiding over cases, especially Investor-state Dispute settlement-related cases. Accordingly, arbitration institutions are looking for ways to ensure that Arbitrators are not subjected to unfair embarrassment after presiding over a case, and sooner or later, policies that fully protect arbitrators may be set up.
Arbitrators are more personal with reforms in this area because they express how much safety and rights they have after issuing awards. There have been unfortunate instances where arbitrators’ fundamental human rights have been encroached, after been jailed by states for rulings being enforced against them.
While it is possible for arbitrators to become biased, reformers believe that necessary adjustments can be necessary to tackle this issue.
With its evolvement, so has many Contemporary Issues in International Arbitration arise. The tribunal has seen and handled almost all types of cases. Fortunately, the system has continued to improve itself such that it has been able to tackle most of the challenges that have confronted it over the years.
Clearly, this article has outlined some of the Current Issues in International Arbitration, especially in the area of commerce, climate policies, and the energy sector. The majority of these Contemporary problems in International Arbitration have been a subject of discussion for the last couple of decades, and some have been handled to a certain extent, but they are still of major concern in recent times.
It is important to note that these issues play a direct and indirect role in judging and enforcing awards in arbitration. This means that you must be aware of these issues and how it relates to your case or situation to ensure that you get the best result. The best way to get an idea on these issues and if they could adversely affect your contract or investment treaty is to seek counsel from professional expert arbitrators or arbitration firms.
Rattsakuten is one of the top firms that you can go for, and be assured of getting the best honest advice on your contract and case and if you will be able to tender a successful claim or not. This firm has some of the best and Expert arbitrators that are technologically inclined and uses recent tools and policies to put you at an advantage in case of any dispute. You can reach the firm for more inquiries on their practices and mode of operation.
Rattsakuten is a leading law firm focused on Commercial Arbitration and Dispute Resolution. Based in Sweden, Rattsakuten handles dispute resolution and Arbitration matters before the SCC (Swedish Chamber of Commerce), ICC, HKIAC, and several other Arbitration tribunals.