International Commercial Arbitration's Detrimental Effect on the Common Law and Precedent: Time for more Systematic Publication of Arbitral Awards

?I????INTRODUCTION

This paper argues that International Commercial Arbitration (ICA) is having a detrimental effect on the common law and precedent. The paper concludes that more systematic publication of arbitral awards is required to address this detriment. Both fields of ICA and the common law are vast. As a result, this paper adopts an expositional approach to each concept respectively, and then links the concepts together in the final section.

The first part of the paper provides an overview of both commercial arbitration and ICA, referencing the legislation relevant to Australia. The second part of the paper is central to the argument. Through an exposition of the common law – stemming itself from the rule of law – normative values are established which provide a touchstone for judging ICA. The final part looks in more detail at ICA and argues that as it is currently constituted ICA is having a detrimental effect on the common law. To rectify this situation, it is suggested that the publication of arbitral awards is needed.

?II???CONTEXTUALISING INTERNATIONAL COMMERCIAL ARBITRATION (ICA)

Tania Sourdin, using the Australian National Alternative Dispute Resolution Advisory Council’s terms, includes ‘arbitration’ as an example of a ‘determinative dispute resolution process’.[i] Such processes involve a third party and a formal hearing, and involve the making of a determination which can be enforced.[ii] Accordingly, arbitration is the dispute resolution process that most closely resembles litigation or legal disputation within a court.[iii]?

Commercial arbitration is the process used to solve disputes of a commercial nature. An arbitrator is appointed to hear the dispute and finally determine the dispute in accordance with agreed procedural rules and substantive laws.[iv] The process is private and, subject to the parties’ agreement, can be confidential.[v] The decision of the arbitral tribunal is final and binding; with the decision or ‘award’ being enforceable by a court.[vi]

Commercial arbitration is usually contingent on an ‘arbitration clause’ in the originating commercial contract.[vii] However, absent a clause it is possible to submit to arbitration after a dispute arises through a ‘submission agreement’.[viii] The origin of commercial arbitration in a national setting is lost in the recesses of time.[ix]

However, international arbitration, or the international form of commercial arbitration began in Continental Europe in the 1920s. At that time, difficulties arising from the enforceability of ‘international commercial arbitration clauses’ in national jurisdictions were overcome. This was achieved through the adoption of the 1923 Geneva Protocol on Arbitration Clauses by the League of Nations.[x] Since the 1920s International Commercial Arbitration (ICA) has achieved considerable success as a highly efficient mechanism to resolve international commercial business disputes.[xi] The best-known ICA institutions providing a framework for ICA are the Paris-based International Chamber of Commerce (ICC) – with its arbitral court established in 1923[xii] – and the London Court of International Arbitration (LCIA).?

At the beginning of 2009, the Honourable James Spigelman, the then Chief Justice of the Supreme Court of New South Wales passionately argued that Australia was falling behind in the Asian region and internationally with respect to ICA. Australia’s international and domestic commercial arbitration regimes needed reform. His Honour said the Commonwealth Arbitration Act, and the state and territory Commercial Arbitration Acts (collectively the CAAs) were ‘now hopelessly out of date’ and were ‘embarrassing’.[xiii] Heeding Justice Spigelman’s call, late in 2009 the Standing Committee of the Attorney’s General introduced to each state and territory legislature a Model Commercial Arbitration Bill aimed at instituting ‘Uniform Commercial Arbitrations Acts’ (UCAAs).[xiv]

Since 2010, all Australian states and territories have repealed their old legislation and enacted fresh UCAAs consistent with the International Arbitration Amendment Act 2010 (Cth) (Amended IAA).[xv] Further, the amended IAA is now almost identical with the 2006 UNCITRAL Model Law on International Commercial Arbitration (Model Law).[xvi] The UN General Assembly notes that the purpose of the Model Law is to: [xvii]

[S]ignificantly contribute to the establishment of a unified legal framework for the fair and efficient settlement of disputes arising in international commercial relations … [and recognise] the desirability of uniformity of the law of arbitral procedures…

Indirectly addressing Justice Spigelman’s concerns, the Attorney General said in the International Arbitration Amendment Bill’s second reading speech ‘the Bill will ensure Australia is an attractive venue for parties from around the world to resolve their disputes’.[xviii] This was one of only two of the purposes of the Bill; the other was to help Australian businesses resolve their disputes.[xix] While these purposes are rhetorically pregnant, what the changes actually achieved are legally significant.[xx]

The legal significance is that despite the ‘dualist backdrop’ of Australian commercial arbitration law[xxi] – federal (for international) and state (for domestic) – the amended IAA and new UCAAs narrow the gap between the laws applicable to international and domestic arbitration. In other words, practically speaking Australia is now ‘monist’ in its arbitration law and effectively harmonised with ICA practice.[xxii] Importantly, for this paper, criticisms of ICA now also equally apply to Australian commercial arbitration.

One of the most important amendments contained within the amended IAA was that section 21 now provides that parties could no longer opt-out of the Model Law and chose an alternative arbitral procedural law. This change related to the Eisenwerk decision.[xxiii] In Eisenwerk, the Queensland Court of Appeal held that by adopting the ICC Rules of Arbitration, the parties had opted out of the Model Law for the purposes of the old s 21. The criticism of the decision is obvious: the choice of institutional rules – ICC, LCIA, et cetera – which affect matters such as notification times for hearings and administration costs, had no bearing on the substantive law chosen by the parties and therefore on the arbitrator’s determination.

In other words, with ICA, there is not a national equivalence of procedural law and substantive law, to that of an international legal context.[xxiv] The error of Eisenwerk was the Court argued that there was. Justice Allsop explains the distinction according to the following.[xxv] There are basically three systems of law bearing on an ICA: first, the law governing the agreement to arbitrate; second, the arbitral procedural law – the lex arbitri; and third, the law governing the substantive dispute – or substantive law.[xxvi] To these a fourth can be added: the institutional administrative rules. These rules are not a system of law but more like a ‘procedural framework’. They would most clearly fall within Allsop’s first system.

The law governing the agreement to arbitrate is separable or severable from the substantive contract to which it relates.[xxvii] The case law surrounding this law differs between jurisdictions. For example, courts in Hong Kong have ruled that absent express agreement or provision, the law applicable to the agreement to arbitrate will be the law of the seat of the arbitration.[xxviii] For example, a contract governed by New York law, yet subject to arbitration in Hong Kong would see the arbitration agreement governed by Hong Kong law, not New York law.[xxix] Second, the lex arbitri refers to the mandatory provisions imposed by each country on arbitrators with respect to, inter alia, interim measures, the ability to rule on its own jurisdiction, and legal ethics. Because the lex arbitri often relates to matters of public policy, it is possible that the other freely chosen rules of procedure may be subject to judicial annulment if an aspect of lex arbitri in the jurisdiction is violated.

Finally, the substantive law. The key principle is that parties entering ICA are free to choose the law applicable to the arbitration. The arbitral tribunal[xxx] or arbitrator will respect the parties’ autonomy. While parties would usually choose a national law to govern the contract they are not limited to do so.[xxxi] They may choose different sets of laws, rules relating to the UN’s Contracts for the International Sale of Goods (CISG), equitable principles, or even choose that different parts of the contract be governed by different laws.[xxxii] However, the fundamental corelative issue is that once a decision by the arbitral tribunal has been reached via the parties’ chosen law or laws, the decision is binding on the parties. Astoundingly, and concerningly, it is not generally known what authority is relied on by the tribunal in determining its award.[xxxiii] This issue is returned to in part IV.

?III??THE RULE OF LAW, THE COMMON LAW AND PRECEDENT

It is not possible for this paper to engage fully in an analysis of the concepts of the rule of law, common law and precedent. However, it is necessary to provide some analysis, and to do so in sequence. Covering these concepts in this way not only provides a basis of critique of the current practice of ICA; but also provides a firm basis from which to withstand counter-arguments; and provides some indications on pragmatic solutions to improve ICA practice. All these issues are returned to in part IV.

David Rivkin’s lecture ‘the Impact of International Arbitration on the Rule of Law’ is a good example of excellent scholarship which fails in part because it lacks an analytical framework.[xxxiv] The key weakness is that Rivkin provides no definition of the rule of law despite on many occasions referring to international arbitration’s contribution to it. The closest Rivkin reaches to a definition is remarking that in several key historical State-to-State Arbitrations, arbitrators have enforced previous arbitral decisions and therefore ‘have enforced the rule of law’.[xxxv] While unsatisfactory as a definition, it does illuminate that Rivkin implicitly accepts the importance of precedent to the concept of the rule of law, and the importance of precedent to international arbitration.

Support for the concept of the rule of law dates at least back to Aristotle, and its later supporters and theorists include: John Locke, Montesquieu, A.V. Dicey, and F.A. Hayek.[xxxvi] In many countries the rule of law is regarded as an explicit fundamental constitutional principle.[xxxvii] It is commonly argued that the rule of law is regarded as important for three of its facets. Only two are relevant to this paper.[xxxviii]

First, the formal facet. The rules that guide society and its citizens should be knowable through open and relatively stable general rules. Without clarity of the rules it is impossible to know the rules and use them to guide conduct. Without knowing the rules it would be unjust to be sanctioned for any breach.

Second, the procedural facet. This includes, inter alia, habeas corpus, legal representation, and knowing and hearing from the tribunal the reasons for a decision.[xxxix] Both facets are self-reinforcing, they form the foundation for the importance of the rule of law and provide it with its a priori normative status in all polities.[xl]?

How then is the rule of law made known and dispersed? In the words of Martin Kygier, the rule of law radiates outwards from its sources: from legal institutions, administrative institutions, legislative institutions, and acceptable customary practices.[xli] Kygier writes that the four outcomes of the rule of law, ‘reduction of domination, of fear, of indignity, and of confusion – are not small reasons to value [it]’.[xlii]

According to the philosopher Adam Smith, the legal institutions fixed or set by the rule of law established rights and duties, and ‘reduced confusion’. The institutions of the common law and the ‘common law method’ used to achieve these outcomes were therefore indispensable to society. According to Smith the institutions and the method were a fund of rights independent of the laws from legislative institutions or government.[xliii] The common law was a source of separately derived rules and freedoms.[xliv] However, both the institutions and the method were just as important to one another as they both established and demarcated rights.[xlv] Together, they serve critical social functions.[xlvi] These social benefits are first addressed below, followed by the importance of the common law method: precedent.

One of the social functions of the civil courts is to provide authoritative statements on what the law is, who has rights and how those rights are to be vindicated.[xlvii] Indeed, the classic right protecting citizens, was habeas corpus. This was a prerogative writ issued by the courts. The norms and behaviours promulgated ‘radiate out from public statements in court and influence the behaviour of both citizens and governments in daily interactions’.[xlviii] For civil justice to perform this first social function, the public adjudication and public promulgation of decisions is therefore paramount.

Second, the ability of disputing parties to make reasoned arguments to an impartial third party in open court represents the essence of adjudication. Adjudication in turn is a manifestation of a procedural aspect of the rule of law.[xlix] Moreover, public judgement reached at the end of hearings is only done after hearing evidence and arguments from both sides.[l] Public judgement ‘provides an impartial and authoritative resolution to the dispute’.[li] In sum, even if it is a private dispute, the key social and public functions provided by legal institutions is: the determination of authoritative rules; the rational adjudication of rules; open adjudication of rules; and fair adjudication. ?These functions help all citizens manage their lives in a predictable and more certain way.

The common law method is one of the four senses or meanings commonly attributed to the broader term ‘common law’. However, it is important to keep it analytically distinct.[lii] The four senses of the common law are: the law laid down by the common law courts – the institutions; a system of law developed by precedent – the common law method; case law that is not enacted by statute; and the law developed in England.[liii] After coving the first sense above, it is to precedent – the second sense – that this paper now turns.

Even if the value of legal institutions is accepted, one of the obvious criticisms is that there is explanation of how to account for and adapt to change. Precedent is the response to this criticism. Lord Denning put the essence of precedent thus: [liv]

[I]f we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on: and that will be bad for both.

Generally speaking, and following Lord Denning, precedent means national courts follow earlier cases and may depart from them. Specifically speaking, precedent also explains how this process works.

Precedent consists of two basic propositions. The first proposition is structural. It stems from the Latin maxim stare decisis et not quieta movere (stare decisis) which means ‘to stand by decision and not disturb the undisturbed’.?Stare decisis consists of two components: decisions of superior courts must be followed; and judges are bound to apply the reasoning of judges in past cases that raise similar facts.

Focusing on the second component, this means that superior judges must take seriously the reasoning of judges in past cases even if they are not bound to apply that reasoning but that lower court judges must follow superior judges.[lv] The point cannot be stressed enough. It means that a component of stare decisis is that the court or the decision-maker may follow the precedent or the reasoning without legally being bound to do so.[lvi]

The following can be distilled from both components of stare decisis: the reasoned decisions of superior courts must be followed; but the decision-maker is nonetheless duty bound to take account of the reasoning process even in cases where they are not bound to actually follow it. In short, the reasoning process itself is the foundation for stare decisis. In other words, and as others have pointed out, stare decisis is nothing more than a stricter form of precedent. Stare decisis is bounded judicial reasoning.[lvii]

The second proposition regarding precedent is a formal one. It is that ‘a precedent’ determines reasoned conclusions in a certain way. This too draws attention to the importance of the reasoning process in the common law. Such a reasoning process – the judicial reasoning process – is unique and includes reasoning and deciding in the same way with the same fact scenario; and analytical reasoning through ‘close’ and ‘remote’ analogies.[lviii]

?These propositions about the common law and precedent are critical for the following four reasons. First, there is near certainty in the application of the law and ‘individuals, business and government can order their affairs on a sure legal footing’.[lix] Second, new matters ‘can result in the development of novel law’.[lx] Without the common law method there would be no Donoghue v Stephenson.[lxi] Third, the common law – its institutions and its methods – provide an essential service to society as it maintains and develops the law. Fourth, open adjudicative processes reduce the number of future lawsuits by clarifying the law.

Without this process and without a precedent a ‘disputed point of law could give rise to lawsuits indefinitely, so long as they all settle …’. This is because there is no clarity provided to would-be future defendants as to how to act now.[lxii] As shown in part IV, this criticism applies to ICA as there is the very limited publication of arbitral awards.

To summarise, this part of the paper has shown the rule of law is a foundational principle in almost all societies. The rule of law holds an a priori normative status. Second, the rule of law generates several subsidiary ideas and practices such as common law legal institutions and legal method. This method is called precedent. The common law requires that decisions are based on clear adjudicative principles that are available to all. Critically, without decisions openly arrived at and without new matters being brought into the public domain, rights and principles would not be generated. Such a situation where decisions were not openly arrived at and where matters were not brought in the public domain would ‘provide fertile ground for transforming the common law from a living instrument into … “an ossuary”’.[lxiii]

?IV???ICA’s DETRIMENTAL EFFECT ON THE COMMON LAW AND PRECEDENT

A?????ICA CURRENT FACTS

The annual Global International Arbitration Survey (GIAS)[lxiv] provides feedback from the users of ICA. Consistent with earlier trends, 97% of respondents expressed that ICA was their preferred method of resolving cross-border disputes. 64% valued most the enforceability of awards; 60% valued most avoiding national courts; 39% valued most the ability to choose arbitrators; and 36% valued most confidentiality.[lxv] Further, from the data available the number of ICAs is rising dramatically. From a total of 4130 in 2012, to 5661 in 2016.[lxvi] The rise in ICA is consistent with a growing number of domestic commercial arbitrations.[lxvii]

However, with the rise of commercial arbitrations internationally and domestically there has been a discernible decline in the number of commercial disputes appearing in courts of leading common law jurisdictions.[lxviii] It has been suggested that commercial arbitration is contributing to the ‘vanishing trial’.[lxix] This question is beyond the scope of this paper. However, it will be shown that ICA is having a detrimental effect on the common law.

B?????ICA AND CONFIDENTIALITY

Part III showed that the rule of law generates legal institutional structures and processes. These include openness, stability, and transparent and analogous reasoning. Prima facie, the principle of confidentiality so closely associated with commercial arbitration would vitiate the common law.

In fact, there is no universally recognised international concept of confidentially in arbitration, and it varies from jurisdiction to jurisdiction.[lxx] For example, pursuant to Hong Kong law confidentiality is statutorily protected.[lxxi] In Australia, the law does not recognise the concept of confidentiality in arbitration proceedings in the same way.[lxxii] However, the consistent theme across all jurisdictions is that arbitration hearings will be held in private and there is no systematic publication of arbitral awards or decisions. This is the position adopted by many of the major arbitral institutions.

For example, the Hong Kong International Arbitration Centre (HKIAC) Rules state ‘there is no publication of awards without the express consent of the parties’.[lxxiii] In contrast, the ICC Rules allow for the publishing of extracts of selected awards and procedural orders. These awards only total to about 30 decisions out of several hundred – a mere 4% of ICC arbitrations.[lxxiv] Extracts are generally not released until three years after the arbitration proceedings have closed and do not disclose the parties. Finally, it is interesting to observe from the arbitration survey above, that only 36% of respondents most valued confidentiality in ICA proceedings. While this is a large minority, it still remains a minority of just over one third.

C?????ICA’s CONTRACTUAL BASIS: THE RULE OF LAW PARADOX

The fundamental principle of a commercial contract is that it is an agreement giving rise to obligations which are enforced and recognised by law. Contractual party autonomy allows individuals and corporations to order their commercial affairs by submitting their contract to arbitration outside of the judicial process.[lxxv] In effect this is legally contracting with one another to submit to a non-legal solution – though ultimately legally enforceable – if the contract breaks down.

As shown in part II of this paper arbitrators have very broad discretion over the application of relevant judicial precedents to apply to the case. Because of party autonomy arbitrators are not bound by any previous precedents, and there is no duty to national law.[lxxvi] Arbitrators are only bound to respecting parties’ autonomy. Arbitrators in applying the substantive law chosen by the parties, only apply this substantive law to the parties’ matter. ICA awards would rarely ever have any impact in other disputes.[lxxvii]

This means that through a rule of law principle – contractual party autonomy – the parties have contracted out of the beneficial social contributions made by institutional processes and methods. Clearly efficiency and cost are a consideration for doing this.[lxxviii] However, this has paradoxical effects. For example, the broader benefits of rights creation through institutional processes are stunted, and the generation of broader rights through the judicial method of precedence are non-existent. Sir Bernard Rix asks:[lxxix]

How is the lex mercatoria, that international commercial law not necessarily rooted in any one country, about which proponents of international commercial arbitration write, to be created or known, unless awards are available in the public arena?

As shown, precedent is critically important in a domestic polity. This also applies internationally with respect to international private law. Precedent can provide a medium of ‘communication’ with which a greater contribution can be made by all participants to the greater stability of a decentralised jurisdictional system.[lxxx] Moreover, precedent would go a long way in making international commercial norms clear and predictable. With more published awards and a greater reliance on precedent there would be less time needed for deliberations, and a shorter time to hand down an award.[lxxxi]

None of this is to advocate for the judicial encroachment on arbitration. The argument is not a return to litigation. Nor is it to advocate for an impossible-to-implement international system of stare decisis. To the contrary, the argument is that as commercial arbitration stands now, it is having a detrimental effect on the common law in general and on commercial law in particular.[lxxxii]

ICA’s detrimental effect on common law is not only supported by the facts touched upon above[lxxxiii] but also by the following. With a mere fraction of decisions published there is very little, even as persuasive precedent, for domestic institutions of the common law to develop, to analyse, and to generate norms and rules from. As numbers of international commercial disputes continue to move towards arbitration, combined with the near impossibility of getting arbitral awards into the public domain, ‘commercial law is going underground’.[lxxxiv]

In further support of these arguments consider the famous case decided by the High Court of Australia prior to the implementation of the UCAAs. Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales[lxxxv] is regarded as a seminal Australian contract case and it is cited frequently in court. The case related to the construction of a tunnel and rail line in Sydney and was the subject of a long arbitration process followed by a series of judicial appeals. Many legal issues were raised, and its resolution improved the certainty of Australian commercial law principles. The case is often cited in respect of several issues that commonly arise in cases involving a contract.[lxxxvi]

The arbitrator’s original decision in favour of the contractor was based on an implied term. The judge in first instance agreed with the arbitrator’s award as did the New South Wales Supreme Court of Appeal.[lxxxvii] The argument that the contract had been frustrated was rejected at all judicial levels. The High Court ultimately ruled that the contractor’s case failed and there was frustration of the contract.[lxxxviii]

Had the award been made after the introduction of the UCAAs in New South Wales, and consistent with the Model Law, the case was unlikely to ever have reached the High Court as it . Consequently, an important development and clarification of the common law on contract would never have occurred.[lxxxix]

D?????SOLUTIONS: THE PUBLISHING OF ARBITRAL AWARDS

One of the main counter-arguments to the fundamental thesis of this paper is that arbitration doesn’t exist for the purposes of making law, but as a means of resolving disputes between parties. This was the argument made by the former Chief Justice of the High Court Robert French in Hong Kong in light of rising academic and legal criticism of ICA.[xc] However, this misses the point. The criticism that ICA is stifling lex mercatoria and the common law is a real one with obvious expected consequences.

The main consequence is that there are rising public legitimacy issues. If the States that sustain the system refuse to enforce arbitral decisions, then the whole edifice of ICA would collapse. In this context, laws introduced in Russia in 2015 are significant. The laws dilute ICA’s award enforceability and exclude certain matters from arbitral consideration irrespective of an arbitration clause.[xci]

Furthermore, there is a growing general public interest in publishing awards for many of reasons articulated above. Arbitral institutions are aware of the interest and are considering how to make the awards public knowledge. [xcii] The public interest ‘rises above the purported interest of disputants in keeping them confidential’ as it should.[xciii]

Any sound criticism of ICA cannot be made without positing potential realistic solutions. Consistent with this paper’s arguments regarding the common law and precedent, number of proposals are briefly sketched below before making some brief concluding remarks.

First, when arbitral institutions such as the ICC and the LCIA determine that particular awards are significant in terms of precedent or in terms of reasoning, the awards should be capable of being published. It would be possible to protect the names of the parties as is currently the practice. Second, confidentiality needs to be reconsidered and at least reformulated. According to the users of ICA, there is only a minority that see it as important in any event. Third, there should be a default rule that after a certain period of time an award would be published in an anonymised form. This should be more promptly than the ICC’s three-year rule. ?

V???CONCLUDING REMARKS

The rule of law and the tangible institutions and practices that flow from it, ultimately demand in the interests of openness a greater knowledge of what arbitrators are doing and how they are doing it. Greater openness in turn promotes higher ethical standards, good procedure and more considered reasoning. The common law has such a wealth of legal rationality, it would also be a tragedy to not use the common law to support private international law. Relatedly, ICA and arbitral law, given its complex nature would provide insights and fact situations that national legal institutions are unable to consider. The common law’s next Donoghue v Stephenson may in fact be derived from a published ICA arbitral award.

Moreover, the publishing of awards promotes certainty, predictability and consistency for all users and potential users. It would also help to support and maintain a richer and more vibrant domestic commercial law. The publishing of arbitral awards would mean that ICA would contribute to the common law, rather than have a detrimental effect on it.

?

SELECT BIBLIOGRAPHY

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?Blavi F, ‘The Role of Arbitral Precedent in International Commercial Arbitration: Present and Future Developments’ (2015) 6 Resolved, Journal of Alternative Dispute Resolution 1,2.

?Elias S, ‘The Usages of Society and the Fashions of the Times: W[h]ither the Common Law’ (Address at the 13th Commonwealth Law Conference, Melbourne, 15 April 2003).

?Fleming J (ed), Nomos L: Getting to the Rule of Law (New York University Press, 2011).

Ferrari, Conflicts of Laws in International Arbitration (Munich, 2011) 272.

?Galanter M, ‘The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts’ (2004) 3 Journal of Empirical Legal Studies 459.

?Genn H, ‘Why Privatisation of Civil Justice is a Rule of Law Issue’ (The F A Mann Lecture, Lincoln’s Inn, 19 November 2012)

?Gruin J, ‘The Rule of Law, Adjudication and Hard Cases: The Effect of Alternative Dispute Resolution on the Doctrine of Precedent’, Australian Dispute Resolution Journal (2008) 19 206.

?Gulliame G, ‘The Use of Precedent by International Judges and Arbitrators’, Journal of International Dispute Settlement (2011) 2(1) 5.

?Henderson, ‘Lex Arbitri, Procedural Law and the Seat of Arbitration’, Singapore Academy of Law Journal (2014) 866.

?Haakonssen K, ‘The Lectures on Jurisprudence’. In Ryan Hanley (ed), Adam Smith: His Life, Thought, and Legacy (Princeton UP, 2016) 60.

?Harding M, ‘The High Court and the Doctrine of Precedent’, Opinions on High (Blog Post, 18 July 2013) <https://blogs.unimelb.edu.au/opinionsonhigh/2013/07/18/harding-precedent/>.

?Kaufmann-Kohler G, ‘Arbitral Precedent: Dream, Necessity or Excuse?’ (The 2006 Freshfields Lecture, 14 November 2006) in Arbitration International (2007) 23(3) 357.

?Li E, Business and Corporate Law (Lawbook Co, 2nd ed, 2017) 164.

?Miles C et al, ‘Understanding Australia’s New Domestic Arbitration Regime: A Comparison of the Australian state Commercial Arbitration Acts and the New Model Commercial Arbitration Bill’,?Chartered Institute of Arbitrators Australian (CIArb Australia) (Web Page) < https://www.ciarb.net.au/resources/domestic-arbitration-archive/understanding-australias-new-domestic-arbitration-regime-a-comparison-of-the-australian-state-commercial-arbitration-acts-and-the-new-model-commercial-arbitration-bill/>.

?Monichino A, ‘The Future of International Arbitration in Australia’, Victoria University Law and Justice Journal (2015) 5(1) 61.

?Nottage L, and James Morrison, ‘Accessing and Assessing Australia’s International Arbitration Act’, Journal of International Arbitration (2016) 34(6) 963.

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?Rivkin D, ‘The Impact of International Arbitration on the Rule of Law’ (The 2012 Clayton Utz/University of Sydney International Arbitration Lecture, 13 November 2012), Journal of International Arbitration (2013) 29(3) 327-360.

?Rix B, ‘Confidentiality in International Arbitration: Virtue of Vice?’ (Jones Day Professorship in Commercial Law Lecture SMU, Singapore, 12 March 2015).

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ENDNOTES ?

[i] Tania Sourdin, Alternative Dispute Resolution (Lawbook Co, 5th ed, 2016) 190. See also NADRAC, Alternative Dispute Resolution Definitions (AGPS, 1997) 5 ?<https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/NadracPublicationsByDate.asp>.

[ii] Ibid. The original text actually states ‘potentially enforceable’. However, in the case of commercial arbitration the decision of an arbitral tribunal is final and binding and enforceable.

[iii] See ibid.

[iv] ‘Australian Disputes Centre: Overview’, Australian Disputes Centre (Web Page) <https://www.disputescentre.com.au/arbitration/>.

[v] See ibid (emphasis added as this point will be returned to).

[vi] See ibid.

[vii] Arbitration clauses are relatively straightforward but there are several issues to be aware of. For example, the scope of arbitration, the institution and its rules must be specified. In addition, the minimum requirements?of?a solid arbitration agreement must be met to ensure enforceability and avoid jurisdictional challenges to the award. A number of institutions offer ‘model arbitration clauses’. The agreement should be in writing including any electronic communication. Other elements to be included are the number of arbitrators, the seat or place of arbitration, the language of the arbitration and the substantive law or the governing law of the contract. The seat or the place of arbitration is the juridical seat and determines the procedural law governing the arbitration. While choosing a proper seat is vital in international arbitration, it is also important in domestic cases.?Fixing the seat in one place does not preclude the hearings from physically taking place elsewhere. Finally, the language of the arbitration needs to be considered. Even in domestic arbitration, the principal or director of a company may not be a native English speaker and documentation may be in a different language. Specifying the language of the arbitration and documentation and which party will bear interpretation and translation costs if any is also a consideration.

[viii] Essentially, both parties agreeing to submit to arbitration to determine the dispute. See Donna Ross, ‘Beware the Champagne Clause: When Effervescence Fades, It May Just Be Pathological’, Australian Disputes Centre (Web Page) <https://www.disputescentre.com.au/beware-the-champagne-clause/>.

[ix] Earl Wolaver, ‘The Historical Background of Commercial Arbitration’ (1934) 83 University of Pennsylvania Review 132.

[x] Clearly a State needed to be a party to the Protocol and subscribe to the Protocol’s contents. See United Nations Conference on Trade and Development (UNCTAD), Dispute Settlement: International Commercial Arbitration (Web Page) 20 <https://unctad.org/en/Docs/edmmisc232add38_en.pdf>.

[xi] Francisco Blavi, ‘The Role of Arbitral Precedent in International Commercial Arbitration: Present and Future Developments’ (2015) 6 Resolved, Journal of Alternative Dispute Resolution 1,2.

[xii] UNCTAD (n 8) 20.

[xiii]?Chief Justice Spigelman, ‘Address to the Law Society of New South Wales’ (Speech Delivered at the Opening of the Law Term Dinner, February 2009) <https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22media/pressrel/NYQS6%22>.

[xiv] Andrew Stephenson and Astrid Anderson, ‘Arbitration: Can It Assist in the Development of the Common Law – An Australian Point of View’, International Construction Law Review (2016) 33(4), 414.

[xv] See Commercial Arbitration Act 2010 (NSW); Commercial Arbitration (National Uniform Legislation) Act 2011 (NT); Commercial Arbitration Act 2013 (Qld); Commercial Arbitration Act 2011 (SA); Commercial Arbitration Act 2011 (Tas); Commercial Arbitration Act 2011 (Vic); Commercial Arbitration Act 2012 (WA); and Commercial Arbitration Act 2017 (ACT).

[xvi] UNCITRAL stands for the United Nations Commission on International Trade Law. The Commission was established by the United Nations General Assembly by Resolution 2205 (XXI) of 17 December 1966 ‘to promote the progressive harmonisation and unification of international trade law’. The Model Law was originally adopted in 1985 and amened in 2006. The Model is not binding but individual nation-states may adopt the model law by incorporating it into their domestic law. The 1986 version of the Model Law was incorporated into Australian law on 15 May 1989, and the amendments to the IAA in 2010 replaced it with the 2006 version of the Model Law: International Arbitration Amendment Act 1989 (Cth); International Arbitration Act 2010 (Cth).

[xvii] UNCITRAL Model Law on International Commercial Arbitration 1985 With amendments as adopted in 2006, GA Res 40/72 112th Plenary Meeting (11 December 1985) Annex I, vii <https://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf> (emphasis added).?

[xviii] Commonwealth, Parliamentary Debates, House of Representatives, 25 November 2009, 12790 (Robert McClelland, Attorney General).

[xix] Ibid.

[xx] The author mentions ‘rhetorically suggestive’ because the Attorney General and Justice Spigelman clearly wished to establish a commercial arbitration hub in Australia to capitalise on the growth of business in the ‘Asian century’. Indeed, on 3 August 2010, the Australian International Dispute Centre (AIDC) was established in Sydney, and a new centre in Melbourne. The Melbourne Commercial Arbitration and Mediation Centre (MCAM) was added in March 2014. However, the rise in ICAs arbitrated in Australia has risen a tiny fraction (by 3 only since 2010!) relative to the then and now massive number of arbitrations in Singapore, Hong Kong and China. The policy and legislation have arguably been a spectacular failure. See also Luke Nottage and James Morrison, ‘Accessing and Assessing Australia’s International Arbitration Act’, Journal of International Arbitration (2016) 34(6) 963, 974-975.

[xxi] Of course, Australia’s bifurcated legislative regime does not only relate to commercial arbitration. It is a product of the Constitution and the Australian federal system of government. Section 52 lists a number of the areas over which the Commonwealth Government has exclusive power to make laws. In the case of commercial arbitration if the matter relates to international commercial arbitration it is a Commonwealth responsibility, however, if the matter relates to intra-national commercial arbitration it is a matter for the States and Territories. The new CAAs essentially create harmony across both legal fields.

[xxii] Strictu sensu Australia remains a dualist arbitral jurisdiction. However, the new state and territory CAAs adopted from the Model Commercial Arbitration Bill did not simply amend the existing CAAs. Rather, a new piece of legislation drawing on completely different traditions of jurisprudence was adopted and enacted. The previous CAAs were based on the UK’s Arbitration Act 1976 (which is itself replaced by the UK’s Arbitration Act 1996). The new Commonwealth IAA and state and territory CAA’s are now based on the provisions of the 2006 UNCITRAL Model Law regarded as the benchmark for arbitral laws. See Cameron Miles, Dr Sam Luttrell, and Stephen McComish, ‘Understanding Australia’s New Domestic Arbitration Regime: A Comparison of the Australian state Commercial Arbitration Acts and the New Model Commercial Arbitration Bill’,?Chartered Institute of Arbitrators Australian (CIArb Australia) (Web Page) < https://www.ciarb.net.au/resources/domestic-arbitration-archive/understanding-australias-new-domestic-arbitration-regime-a-comparison-of-the-australian-state-commercial-arbitration-acts-and-the-new-model-commercial-arbitration-bill/>.

[xxiii] This argument is from Albert Monichino, ‘The Future of International Arbitration in Australia’, Victoria University Law and Justice Journal (2015) 5(1) 61. See Eisenwerk v Australian Granites Pty Ltd [2001] 1 Qd R 461.

[xxiv] This can also be seen simply by the fact that ICA procedural rules do not have the same domestic legislative force as domestic civil procedure. The procedural rules of the ICC, or what is called the ‘procedural framework’ run to a mere 41 pages in a glossy brochure excluding Appendixes. See ICC, ‘2017 Arbitration Rules and 2014 Mediation Rules’, ICC (Web Page) <https://iccwbo.org/publication/arbitration-rules-and-mediation-rules/>.

[xxv] Chief Justice Allsop, ‘The Role of Law in International Commercial Arbitration’, (CIArb Inaugural Annual Lecture, Melbourne, 15 October 2018) < https://www.fedcourt.gov.au/digital-law-library/judges-speeches/chief-justice-allsop/allsop-cj-20181015>.

[xxvi] Ibid.

[xxvii] Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170.

[xxviii] This differs from the UK for example, which determines (absent express agreement) the law will be that which the arbitration agreement has ‘the closest and most real connection’. See Alastair Henderson, ‘Lex Arbitri, Procedural Law and the Seat of Arbitration’, Singapore Academy of Law Journal (2014) 866.

[xxix] Tamil Nadu Electricity Board v ST-CMS Electric Company Private Limited [2007] EWHC 1713 (Comm).?

[xxx] Which may be a single arbitrator, though more usually three.

[xxxi] In the case where parties fail to provide a choice of substantive law courts and arbitral tribunals resolve this issue by assessing party intent and selecting the law that the parties are presumed to have intended to choose. In the instance where this is not discernable, the governing law will be from the application of the conflict of laws rules from the seat of arbitration. See Franco Ferrari, Conflicts of Laws in International Arbitration (Munich, 2011).

[xxxii] The choice of more than one set of rules is known as dépe?age. See Franco Ferrari, Conflicts of Laws in International Arbitration (Munich, 2011) 272.

[xxxiii] See the excellent lecture by Gabrielle Kaufmann-Kohler, ‘Arbitral Precedent: Dream, Necessity or Excuse?’ (The 2006 Freshfields Lecture, 14 November 2006) in Arbitration International (2007) 23(3) 357, 362. Kaufmann-Kohler provides the following anecdote: ‘I asked one of my research assistants to survey awards in order to answer these two questions. Several hundred awards later, he returned with a long, detailed memorandum that concluded that arbitrators do what they want with past cases and that there is no clear practice in this field’!

?[xxxiv] David Rivkin, ‘The Impact of International Arbitration on the Rule of Law’ (The 2012 Clayton Utz/University of Sydney International Arbitration Lecture, 13 November 2012), Journal of International Arbitration (2013) 29(3) 327-360. Rivkin is a brilliant lawyer and academic. Rivkin has a wealth of experience over many years as an international arbitrator and was recognised by the American Lawyer as one of the two Global Lawyers in 2012. Even given its faults the lecture provides a rich and deeply illuminating history of international arbitration.

[xxxv] Rivkin (n 33) 328.

[xxxvi] Oxford Dictionary of Philosophy (OUP, 3rd ed, 2008) ‘rule of law’.

[xxxvii] For example, the preamble of the?European Convention for the Protection of Human Rights and Fundamental Freedoms?says ‘the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law’; Finland's?constitution?explicitly requires rule of law by stipulating ‘the exercise of public powers shall be based on an Act. In all public activity, the law shall be strictly observed’. In the United Kingdom the rule of law is a long-standing principle of the way the country is governed, dating from?Magna Carta?in 1215 and the?Bill of Rights 1689. In the 19th century,?A. V. Dicey, a constitutional scholar and lawyer, wrote of the twin pillars of the?British constitution?in his classic work?Introduction to the Study of the Law of the Constitution?(1885). The two pillars are the rule of law and?parliamentary sovereignty. In France and Germany the rule of law is analogous to the principles of constitutional supremacy and protection of fundamental rights from public authorities – particularly the legislature.

[xxxviii] The following is taken from Oxford Dictionary of Philosophy (n 35), and the magisterial work edited by James E. Fleming, Nomos L: Getting to the Rule of Law (New York University Press, 2011). See also Ian Shapiro (ed), Nomos XXXVI: The Rule of Law (New York University Press, 1994). The ‘substantive facet or aspect’ relates to normative ideals that should be included in the rule of law such as ‘fostering human rights’, ‘social justice’, and ‘democracy’.

[xxxix] Relatedly, procedural aspects also include separation of powers structures.

[xl] Julian Gruin, ‘The Rule of Law, Adjudication and Hard Cases: The Effect of Alternative Dispute Resolution on the Doctrine of Precedent’, Australian Dispute Resolution Journal (2008) 19 206, 207. Also Lon Fuller, the Forms and Limits of Adjudication (1978) 92 Harvard Law Review 353 who argues ‘the rule of law is the essence of the democratic state’.

[xli] Martyn Krygier, ‘Four Puzzles about the Rule of Law’, in James E. Fleming (ed), Nomos L: Getting to the Rule of Law (New York University Press, 2011) 82-83. See also Mark Galanter, ‘Radiating Effects of Courts’, in Keith O Boyum and Lynn Mather (ed), Empirical Theories About Courts (New York, 1983) (emphasis added).

[xlii] Ibid 81.

[xliii] Knud Haakonssen, ‘The Lectures on Jurisprudence’. In Ryan Hanley (ed), Adam Smith: His Life, Thought, and Legacy (Princeton UP, 2016) 60.

[xliv] This independent function of the common law should be prized in and of itself. If only as a check on arbitrary and capricious exercises of power. Clearly Smith shared some affinities with Montesquieu though Montesquieu was explicitly stating the need for a separation of powers.

[xlv] It is worth noting very significant point that when an analysis is undertaken this way one can argue that there appears to be a self-reflexive relationship between the common law institutions and the common law method. That is between the ‘judiciary’ and the concept of ‘precedent’. What this may means is that the relationship of precedent to the judiciary (form and hierarchical structure), and the basic method of inductive and deductive reasoning provide for ‘reason’ and ‘reasoning’ itself to be a check on its excesses and abuses of power.

[xlvi] Julian Gruin, ‘The Rule of Law, Adjudication and Hard Cases: The Effect of Alternative Dispute Resolution on the Doctrine of Precedent’, Australian Dispute Resolution Journal (2008) 19 206, 206-207.

[xlvii] Dame Hazel Genn, ‘Why Privatisation of Civil Justice is a Rule of Law Issue’ (The F A Mann Lecture, Lincoln’s Inn, 19 November 2012)

[xlviii] Mark Galanter, ‘Radiating Effects of Courts’, in Keith O Boyum and Lynn Mather (ed), Empirical Theories About Courts (New York, 1983).

[xlix] Lon Fuller, ‘The Forms and Limits of Adjudication’, Harvard Law Review (1978) 92 358.

[l] Jeremy Waldron, ‘The Rule of Law and the Importance of Procedure’, James Fleming (ed) Nomos L: Getting to the Rule of Law (New York University Press, 2011) ch 1.

[li] Albert Alchuler, ‘Mediation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two-Tier System in Civil Cases’ (1985) 99 Harvard Law Review 1808. Cited in Genn (n XX) 17.

[lii] Dame Sian Elias, ‘The Usages of Society and the Fashions of the Times: W[h]ither the Common Law’ (Address at the 13th Commonwealth Law Conference, Melbourne, 15 April 2003).

[liii] This last point is important because it refers to what the common law is not. That is, it is not customary law and it is not civil law (as in the French tradition). Moreover, through transplantation this common law went to the United States and England’s former colonies. See Australian Law Dictionary (OUP, 3rd ed, 2017) ‘common law’.

[liv] Alfred T Denning, The Discipline of Law (1979) 296.

[lv] Matthew Harding, ‘The High Court and the Doctrine of Precedent’, Opinions on High (Blog Post, 18 July 2013) <https://blogs.unimelb.edu.au/opinionsonhigh/2013/07/18/harding-precedent/>.

[lvi] Provided that the structural circumstances allow. See the excellent lecture by Gabrielle Kaufmann-Kohler, ‘Arbitral Precedent: Dream, Necessity or Excuse?’ (The 2006 Freshfields Lecture, 14 November 2006) in Arbitration International (2007) 23(3) 357, 358.

[lvii] Georgio Zekos, ‘Precedent and Stare Decisis by Arbitrations and Courts in Globalization’, Journal of World Investment and Trade (2009) 10 475.

[lviii] To understand the significance of this, judicial reasoning differs markedly from the reasoning employed by individuals in their everyday lives. For example, as individuals we would not normally regard the fact that we decided one way in the past as raising some presumption that we should decide the same way in the future. Professor Neil MacCormick says that precedent is ‘a form of institutionalised discourse or practice of a mode of argumentation’. Cited in Dame Sian Elias, ‘The Usages of Society and the Fashions of the Times: W[h]ither the Common Law’ (Address at the 13th Commonwealth Law Conference, Melbourne, 15 April 2003), 6.

[lix] Lord Thomas of Cwmgiedd, ‘The Centrality of Justice: Its Contribution to Society, and its Delivery’ (Paper presented at the Lord Williams of Mostyn Memorial Lecture, 10 November 2016) 6 <https://www.judiciary.uk/wp-content/uploads/2015/11/lord-williams-of-mostyn-lecture-nov-2015.pdf>.

[lx] Ibid.

[lxi] Ibid.

[lxii] Genn (n 46) 18.

[lxiii] Lord Thomas of Cwmgiedd, ‘Developing Commercial Law through the Courts: Rebalancing the Relationship between the Courts and Arbitration (Paper presented at The Bailii Lecture, London, 9 March 2016) 10 < https://www.judiciary.uk/wp-content/uploads/2016/03/lcj-speech-bailli-lecture-20160309.pdf>.

[lxiv] White and Case, QMUL, and ISA, ‘2018 International Arbitration Survey: the Evolution of International Arbitration’ (2018) < https://www.whitecase.com/publications/insight/2018-international-arbitration-survey-evolution-international-arbitration>.

[lxv] Ibid 7.

[lxvi] Latest statistics available, see Michael Altenkirch and Jan Frohloff, ‘International Arbitration Statistics’, Global Arbitration News (Web Page) < https://globalarbitrationnews.com/international-arbitration-statistics-2016-busy-times-for-arbitral-institutions/>.?

[lxvii] Genn

[lxviii] Vijaya Kumar Rajah, ‘W(h)ither Adverserial Commercial Dispute Resolution?’ (2017) 33 Arbitration International 17, 18.

[lxix] See Mark Galanter, ‘The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts’ (2004) 3 Journal of Empirical Legal Studies 459. The ‘vanishing trial’ is a more complex phenomenon and the arguments of this paper do not address it.

[lxx] See Raid Abu-Manneh et al, ‘A Global Guide to International Arbitration 2018’, Mayer Brown (Web Page) <https://www.mayerbrown.com/en/perspectives-events/publications/2018/10/a-global-guide-to-international-arbitration>.

[lxxi] Pursuant to Section 18(1) of the Hong Kong Arbitration Ordinance, unless agreed by the parties, no party may publish, disclose or communicate information relating to the arbitral proceedings and awards.?Section 5 further states that the duty of confidentiality applies as long as the seat of arbitration is in Hong Kong.?Notably, the scope of confidentiality is worded very widely preventing disclosure of even the existence of arbitration proceedings.

[lxxii] Hong Kong law is stricter than the disclosure of confidential information clauses in the Commercial Arbitration Act 2011 (Vic) for example, where section 27(G)(1) allows the arbitral tribunal to order parties to disclose confidential information this would not be allowable in Hong Kong. See also Joanna Du, ‘Hong Kong: A Listed Company’s Duty of Confidentiality in Arbitration’, Kluwer Arbitration Blog (Blog Post, 12 January 2019) <https://arbitrationblog.kluwerarbitration.com/2019/01/12/hong-kong-a-listed-companys-duty-of-confidentiality-in-arbitration-and-its-duty-of-disclosure-to-the-public/>

[lxxiii] See HKIAC 2018 Administered Arbitration Rules < https://www.hkiac.org/arbitration/rules-practice-notes/hkiac-administered-2018>.

[lxxiv] Gilbert Gulliame, ‘The Use of Precedent by International Judges and Arbitrators’, Journal of International Dispute Settlement (2011) 2(1) 5, 15.

[lxxv] Submit to public policy concerns. Akshay Kolse-Patil, ‘Precedents in Investor State Arbitration’ (2010) 3 The Indian Journal of International Economic Law 37, 46.

[lxxvi] Julian Lew, ‘Sulamerica and Arsanovia: English Law Governing Arbitration Agreements’, in Bernardo Cremades and Julian Lew (eds) Parallel State and Arbitral Procedures in International Arbitration (2005) 219, 222.

[lxxvii] Blavi (n 11) 5.

[lxxviii] White and Case (n 63).

[lxxix] Bernard Rix, ‘Confidentiality in International Arbitration: Virtue of Vice?’ (Jones Day Professorship in Commercial Law Lecture SMU, Singapore, 12 March 2015) (there are no page numbers on the document).

[lxxx] Gilbert Gulliame, ‘The Use of Precedent by International Judges and Arbitrators’, Journal of International Dispute Settlement (2011) 2(1) 5, 23.

[lxxxi] Ibid.

[lxxxii] Thomas (n 62) 15; Genn (n 46) 18.

[lxxxiii] Rajah (n 67) 18; Genn ibid. Genn provides detailed statistics in her presentation.

[lxxxiv] Bernard Rix, ‘Confidentiality in International Arbitration: Virtue of Vice?’ (Jones Day Professorship in Commercial Law Lecture SMU, Singapore, 12 March 2015).

[lxxxv] (1982) 149 CLR 337.

[lxxxvi] Enshen Li, Business and Corporate Law (Lawbook Co, 2nd ed, 2017) 164.

[lxxxvii] State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1981) NSW ConvR 55-038.

[lxxxviii] (1982) 149 CLR 337 at 368.

[lxxxix] Andrew Stephenson and Astrid Anderson, ‘Arbitration: Can It Assist in the Development of the Common Law – An Australian Point of View’, International Construction Law Review (2016) 33(4), 415.

[xc] Some of those criticism have been canvassed here. See Robert French, ‘Arbitration and Public Policy’ (2016 Goff Lecture, Hong Kong, 18 April 2016).

[xci] Herbert Smith Freehills, Arbitration Clauses in Russia-Related Contracts, Legal Briefings, 1 August 2017 <https://www.herbertsmithfreehills.com/latest-thinking/arbitration-clauses-in-russia-related-contracts-are-your-dispute-resolution>.

[xcii] Blavi (n 11) 9.

[xciii] Blavi (n 11) 9.?