International commercial arbitration: A single supranational system

Abstract

This dissertation examines International Commercial Arbitration as it appears to have reached a turning point. Through the lens of institutional entrepreneurship opportunity and institutional change theory, the dissertation seeks to determine whether transforming arbitration from an unregulated process to a regulated system would enhance the practice. This question is vital at the present time as arbitration is blemished by increasing cost and time of arbitration proceedings, intervention by national courts in the arbitral process, diminishing party autonomy, and loss of privacy and confidentiality of the proceedings as shown by data from surveys conducted in the last decade or so, and also due to the potential threat posed by the growth of mediation and also litigation in specialist commercial courts. Commentary frequently highlights these issues, but many commentators seldom propose solutions because practitioners benefit from the institution’s current chaotic arrangements where they could increase their fees and extend the proceedings for their financial gain. The dissertation shows that international commercial arbitration is a semi-institutionalised institution and would probably benefit from introduction of the regulative institutional pillar to make it fully institutionalised. An appeal procedure, a mechanism to make the process cost-effective, expeditious, and to reduce intervention by national courts in arbitration proceedings so that arbitrants can maintain privacy and confidentiality of their disputes appears desirable. It recommends establishment of a single supranational regulatory organisation called the ‘International Centre for Arbitration of Commercial Disputes’ (ICACD) to function as a bureaucratic structure in order to respond to the changing needs of the community and to enhance the institution’s status and its functionality, such as to establish the ‘International Arbitration Awards Review Council’ (IAARC).