By Barbara Alicja Warwas
This publication deals an cutting edge method of the subject of legal responsibility in overseas arbitration, a arguable subject that has heretofore no longer been totally explored within the scholarship. Arbitral associations have lately emerged as robust actors with new features in and outdoors arbitration procedures. the writer proposes to shift the controversy on legal responsibility from arbitrators to the arbitral associations. The ebook re-evaluates the orthodox realizing of the prestige, features, and accountability of arbitral associations and is usually recommended for arbitration students, practitioners, and scholars.
it truly is argued that the present laws relating to legal responsibility are insufficient given either the contractual duties and the rising public functionality of arbitral associations and that institutional arbitral legal responsibility is as a result beneficial. The publication additionally hyperlinks the modern capabilities of arbitral associations to fresh debates concerning legitimacy demanding situations in overseas advertisement arbitration. Responding to those demanding situations, a version of institutional contractual legal responsibility is proposed that invitations arbitral associations to proactively control the scope in their liability.
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Extra info for The Liability of Arbitral Institutions: Legitimacy Challenges and Functional Responses
Sample text
21 of institutional arbitration that reflects the prevailing contemporary legal approach to the objectives and functions of arbitral institutions. 1 Moreover, most of the treatises in question provide brief explanations of the leading arbitral institutions such as the ICC Court, the LCIA, or the SCC Institute. 2 These variables are said to be the major determinants of the parties’ consent regarding the recourse to a particular institutional arbitration regime. Only a few legal commentaries on arbitration, including the famous Fouchard, Gaillard, Goldman on International Commercial Arbitration published in 1999, go beyond such conventional understanding of institutional arbitration and explain more complex and often problematic issues that institutional arbitration may entail.
The former prefer in-depth logistical and procedural support in the course of the proceedings because of their relative satisfaction with institutional involvement in arbitration, while the latter require institutional assistance due to their lack of awareness of technicalities of arbitration in more general terms. It is questionable, however, whether institutional arbitration is still such a good alternative to ad hoc arbitration and whether it would not be more accurate today to list its advantages (if any) next to litigation, given the increasing similarity of these two processes.
In fact, contractual analysis of institutional arbitration has significant practical implications inasmuch as it serves as an explanation of the precise moment the institutional contractual duties come into existence and of the content of these duties vis-à-vis the parties and arbitrators, which is determinative of the nature and scope of institutional arbitral liability. These issues become even more problematic once confronted with the analysis of the “judicialization” of institutional arbitration and its impact on the possible decrease in the role of party autonomy in designing the outlook of private institutional arbitration proceedings.