Tuesday, February 13, 2018

Nottage: International Arbitration and Society at Large

Luke R. Nottage (Univ. of Sydney - Law) has posted International Arbitration and Society at Large (in Cambridge Compendium of International Commercial and Investment Arbitration, A. Bjorklund, F. Ferrari, & S. Kroell eds., forthcoming). Here's the abstract:

This chapter investigates how ‘society at large’ interacts with the world of international arbitration, now and for the foreseeable future. This broad topic can be made more manageable by breaking down the interaction through four focus groups within society: the media, academia, arbitration ‘clubs’, and civil society NGOs. These groups provide services to the world of international arbitration but are mostly instead what Emmanuel Gaillard terms ‘value providers’ – seeking to influence its normative structure. This chapter also touches on international and professional organisations, which are also significant value providers. Other contributors to this book project deal with groups that are predominantly ‘services providers’ (lawyers and arbitral institutions) or essential actors (arbitrators and the parties themselves, including states).

One key question throughout this chapter is whether and how international arbitration may be expanding or at least becoming more visible through the four focus groups within society at large. A second is whether this world of international arbitration may be becoming more diverse and indeed polarised, as hypothesised by Gaillard. In this respect, this chapter finds empirical evidence of the ongoing ‘lawyerisation’ first identified by Dezalay and Garth in the 1990s, prompting a first wave of concern about costs and delays associated with arbitration proceedings. The chapter also considers the impact of burgeoning investor-state dispute settlement (ISDS) cases and coverage, especially in the general media. Empirical research, comparing newspapers in Australia and the United Kingdom as well as social media reports, confirms that views about ISDS remain overwhelmingly negative – a new development that could increasingly shape the overall perceptions of international arbitration held within society at large.

Extrapolating from these trends, we can expect the four focus groups, and others within society such as international organisations and states, to continue pressing for:

  • policy debates over the pros and cons of allowing parties freely to agree to subject potentially sensitive disputes to arbitration;
  • more public scrutiny of, and minimum standards for, arbitral institutions and arbitrators;
  • more opportunities to provide amicus curiae briefs, or other less direct means for impacting on disputing parties, decisions of tribunals and future treaty negotiators;
  • more transparency about challenges to arbitrators and awards.
As international arbitration thereby becomes less isolated from the public sphere, we are also likely to see the substantive law being applied and drafted in ways more open to other legal discourses.