The ‘Judicialization’ of International Commercial Arbitration: Pitfall or Virtue?

(2017) 30 Leiden Journal of International Law 405

UNSW Law Research Paper No. 17-65

35 Pages Posted: 12 Oct 2017

See all articles by Leon Trakman

Leon Trakman

University of New South Wales (UNSW) - Faculty of Law

Hugh Montgomery

University College London

Date Written: January 1, 2017

Abstract

This article critiques the global concern that international commercial arbitration (ICA) is becoming increasingly ‘judicialized’, addressing the growing sentiment in ICA that arbitral proceedings are too lengthy, expensive, and complex. Assuming a contrarian perspective, it argues that attempts to address the cost and length of arbitration proceedings ought not to undermine the value of finely reasoned arbitral decisions grounded in law and justice. It also argues for a contextual assessment of ICA that extends beyond the debate over ‘judicialization’.

Using global illustrations and ICA developments in Australia as an initial guide, this article suggests that balancing party autonomy, accountability, efficiency, and fairness in ICA can help resolve these growing criticisms of ‘judicialization’. Ultimately, the reform of international arbitration should take place within a framework of ‘international best practice’ that is both analytical in nature and functional in operation. As such, ICA should not only be affordable and expeditious, it should serve as a legitimate and effective method of resolving international commercial disputes. In addition, it should balance the virtue of transparent proceedings against the need to respect the confidences of the parties.

Keywords: Australia; best practice; dispute resolution; international commercial arbitration; judicialization

Suggested Citation

Trakman, Leon and Montgomery, Hugh, The ‘Judicialization’ of International Commercial Arbitration: Pitfall or Virtue? (January 1, 2017). (2017) 30 Leiden Journal of International Law 405, UNSW Law Research Paper No. 17-65, Available at SSRN: https://ssrn.com/abstract=3050301 or http://dx.doi.org/10.2139/ssrn.3050301

Leon Trakman (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

Hugh Montgomery

University College London ( email )

Gower Street
London, WC1E 6BT
United Kingdom

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