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In the realm of dispute resolution, commercial arbitration has emerged as an increasingly popular alternative to traditional court litigation. As international arbitration gains momentum on the international stage, questions arise regarding the concept of justice within the arbitral process, particularly considering the diverse cultural and multijurisdictional perspectives at play and the limited scrutiny. This chapter delves into the role of arbitrators in dispensing justice, discussing the challenges related to both the procedural aspects within an arbitration and the substantive dispensation of justice.
12 June 26
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This examination begins by analysing the roles of arbitrators and judges, highlighting the fundamental distinctions between arbitration and litigation. Unlike judges in litigation, arbitrators hold unique positions with distinct appointment processes, conflict rules, and accountability mechanisms. Additionally, the chapter will scrutinise court intervention in international arbitration, highlighting its role in upholding the integrity and enforceability of the arbitral process. Moreover, the chapter will address potential obstacles to achieving justice in international arbitration, focusing on the delicate balance between efficiency and substantive justice. While arbitration prioritises efficiency, concerns arise regarding the legitimacy of arbitral decisions and the potential compromise of substantive justice.
Through analysis of national court decisions in various jurisdictions, this chapter aims to shed light on the tension between efficiency and justice in arbitration proceedings. In light of potential obstacles to achieving justice, arbitrators should be adaptable and responsive to the needs and dynamics of each case. This can be achieved by considering hybrid approaches that blend elements of both adversarial and inquisitorial methods to achieve a fair and efficient resolution. This means that the choice between an adversarial and inquisitorial approach in arbitration depends on various factors, including the nature, type, and complexity of the dispute. In addition, it is recommended that, contrary to judges, arbitrators should adopt a more international approach, disconnected from the legal background or style of each arbitrator.
Click here to read the full chapter.
Should you have any questions regarding this publication, do not hesitate to contact Aisha Abdallah or Natalia Mouzoula.
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This publication was first published by the ICCA Congress