Describe Extensively How The Game Of American Football Is Played Where Has International Commercial Arbitration Come From?

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Where Has International Commercial Arbitration Come From?

To fully understand the current role of international commercial arbitration and what shape it is likely to take in the future, it is necessary to look at the past developments that underpin our current arbitration system. In short, to understand the future you need to understand the past.

Arbitration is a system of justice, born of traders. In one form or another, it has existed for thousands of years.

The earliest statute dedicated to arbitration in England was in 1697. In France, the French Revolution regarded arbitration as a natural form, and the Constitution of 1791 declared the constitutional right of citizens to resort to arbitration. It was also incorporated in the Code of Civil Procedure in 1806. The origins of the concept of arbitration in France go back to the ancient courts of pied poudres (French pied poudreux, meaning wanderers), which were established by boroughs. Traders on market days.. The origins of arbitration go back to ancient times, in Europe, in Greece and Rome, with Roman law, and in Asia to dispute settlement practices.

By the 20th century, national courts were reluctant to recognize arbitrators’ decisions. This may be because the courts viewed arbitration as adversarial, as well as being suspicious of the standards applied in arbitration at the time. Even in England, long the center of international commercial arbitration due to its important position as a center for shipping, insurance, commodity and financing businesses, arbitration was initially closely controlled by the English courts.

In 1883 the Court of Common Council of the City of London set up a committee to consider the establishment of a tribunal for the arbitration of trans-national commercial disputes arising within the city limits. The initiative came from the London business community, which was increasingly dissatisfied with the slow and expensive process of litigating in the English courts. A few years later at the inauguration of the tribunal the law was to report quarterly reviews:

“This chamber should have all the qualities that law lacks. Where law is slow, law is expensive where law is cheap, simple where law is technical, peace-making rather than discord-inducing.”

In 1919, the world’s business community founded the International Chamber of Commerce (“ICC”). The ICC is the voice of the international business community and a major driving force in the promotion of both arbitration to resolve international commercial disputes and support the arbitration process and the need for international rules.

As global trade expanded, it was deemed necessary to create a mechanism for the international recognition and enforcement of both arbitration agreements and awards in relation to international commercial contracts.

In 1958 the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the NYC”) was adopted. The NYC provides for the international recognition and enforcement of arbitration agreements and awards by national courts. Since its adoption, the NYC has remained the cornerstone of international commercial arbitration and has marked a quantum leap forward for international arbitration. Lord Mustill described the NYC Convention as a convention which: “can probably claim to be the most effective example of international law in the entire history of commercial law”. NYC’s success is explained by 3 factors:

  1. 144 countries are signatories to the NYC;
  2. A body of international case law has developed to implement the NYC which has had a direct impact on the practice and law of international arbitration;
  3. It is accepted that agreements to arbitrate and arbitral awards shall be enforced by the courts of countries party to the NYC.;

As international arbitration grew and the influence and benefits of the NYC became apparent, new arbitral institutions began to be created to supplement ad hoc arbitrations. Each institution has its own arbitration rules and procedures and offers mediation services that were initially influenced by its own national environment. While there are a large number of arbitral institutions, the major institutions are:

  1. the London Court of International Arbitration (“LCIA”), based in London (established in 1892);
  2. Stockholm Chamber of Commerce (“SCC”), based in Stockholm (founded in 1917);
  3. International Chamber of Commerce (“ICC”), based in Paris (founded in 1919);
  4. American Arbitration Association, based in New York (founded in 1926);
  5. China International Economic and Trade Arbitration Commission (“CIETAC”), based in Beijing (established in 1956);
  6. Hong Kong International Arbitration Center (“HKIAC”), located in Hong Kong (established in 1985);
  7. Singapore International Arbitration Center (“SIAC”), based in Singapore (established in 1991).

By the early 1970s there was a growing need for a neutral set of arbitration rules suitable for use in ad hoc arbitrations. Under the auspices of the United Nations, the United Nations Commission on International Trade Law (“UNICTRAL”) developed arbitration rules. The UNCITRAL Rules cover all aspects of the arbitration process, providing a Model Arbitration Clause, establishing procedural rules regarding the appointment of arbitrators, and establishing rules regarding the form, effect and interpretation of awards.

The UNICTRAL Rules were intended to be acceptable in both capitalist and socialist countries, developed and developing countries, and common law as well as civil law jurisdictions. UNICTRAL rules have gained international recognition and are now widely used. Since 2006, UNCITRAL has been engaged in its Working Group II revision of the Regulations which is now in its final stages of completion. The revised rules are expected to be adopted by UNCITRAL in the summer of 2010.

Another historical landmark came in 1985 with the UNCITRAL Model Law on Arbitration, adopted by an increasing number of countries around the world; And many other countries (where they have not fully adopted it) have based their arbitration laws on it. As the author of Redfern and Hunter on International Arbitration (5th ed.) p. 76:

“If the New York Convention gave international arbitration a global boost, the Model Law made a star with appearances in states around the world.”

While embracing the significant advances brought about by the Model Law, it soon lagged behind the pace of the fast-paced world of international arbitration in at least two respects. First, the arbitration agreement must be in writing, if it is enforceable; And secondly, the provisions of Article 17 govern the power of the arbitral tribunal to order interim measures of relief. This resulted in the Revised Model Law, which was approved by the United Nations in December 2006. The revised Model Law allows for the definition of the “writing requirement” in very broad terms and recommends that the arbitral tribunal have the power to issue Interim measures.

Over the past 25 years, the number of organizations providing arbitration services has increased. In particular, the Hong Kong International Arbitration Center (“HKIAC”) was established in 1985; And in 1991 the Singapore International Arbitration Center (“SIAC”) was established. More recently, in 2008 the ICC established its secretariat branch in Hong Kong and Singapore. Also, in 2008, the LCIA (along with the Dubai International Financial Centre) established a center in Dubai, known as DIFC-LCIA. And, in April 2009, LCIA established a satellite branch in India, known as LCIA India.

This brief summary of the history of international commercial arbitration shows that, throughout history, international trade has given rise to arbitration mechanisms and legal frameworks. In looking to the future of arbitration, one must consider the current and future needs of international commercial practice in order to consider what future developments the field of international commercial arbitration may hold.

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