Reasoned Awards in International Commercial Arbitration: Embracing and Exceeding the Common Law-Civil Law Dichotomy
University of Missouri School of Law
September 1, 2015
37 Michigan Journal of International Law, 2016, Forthcoming
University of Missouri School of Law Legal Studies Research Paper No. 2015-18
Over the last few decades, international commercial arbitration has become the preferred means of resolving cross-border business disputes. The popularity of this particular device is due to a number of uniquely attractive features ranging from the mechanism’s sophisticated blend of common law and civil law procedures to the routine use of reasoned awards. As a result, international commercial arbitration does not resemble domestic arbitration so much as it does complex commercial litigation.
Although international commercial arbitration is considered a highly mature form of dispute resolution, very little information exists as to what constitutes a reasoned award in the international commercial context or how to write such an award. This situation is becoming increasingly problematic given the rising number of international commercial arbitrations that arise every year, the expansion and diversification of the pool of potential arbitrators, and the significant individual and societal costs that can result from badly written awards.
This Article provides the first-ever in-depth analysis of the reasoned award requirement in international commercial arbitration. In so doing, the discussion draws heavily on the large body of material involving reasoned rulings in both common law and civil law courts and considers whether and to what extent those criteria apply in the arbitral context. As a result, this Article not only provides useful information to those seeking to better their understanding of the reasoning requirement in international commercial arbitration, it also provides key comparative insights into the judicial process in both common law and civil law legal systems.
Much of the analysis focuses on theoretical concerns relating to reasoned decision-making in judicial and arbitral settings. However, the discussion also incorporates a strong practical element. As a result, this Article is relevant not only to specialists in international commercial arbitration but also to judges involved in enforcing reasoned awards domestically or internationally, scholars studying arbitral and judicial decision-making, and domestic arbitrators seeking to understand the parameters of a reasoned award under national law.
Number of Pages in PDF File: 56
Keywords: international commercial arbitration, judicial reasoning, courts, judges, federal courts, comparative law, common law, civil law, international law, judicial decision-making, dispute resolution, awards, arbitrators, investment arbitration, due process, writing
Date posted: September 1, 2015