International Commercial Arbitration Put to the Test in the Commonwealth

Abstract

The paper discusses the Study into International Commercial Arbitration in the Commonwealth which was conducted in 2019 by a group of experts commissioned by the Commonwealth Secretariat on behalf of Commonwealth Law Ministers. The Study is based not only on relevant jurisprudence, available awards, literature, and reports on the arbitration landscapes for all 54 Commonwealth jurisdictions but also on 8 stakeholder surveys conducted throughout the Commonwealth, 65 interviews with international arbitration experts with a Commonwealth link, and a number of round table discussions with industry experts. The Study found that Commonwealth countries are at risk of losing foreign investment and trade from not having modern dispute resolution systems available to their business communities. Furthermore, one of the barriers to cross-border trade for small to medium sized businesses (SMEs) is uncertainty over dispute resolution, so an effective system, such as a best practice modern international commercial arbitration framework is seen as essential to encouraging SMEs to do business in other countries. The Study identifies 10 challenges hindering the use of international commercial arbitration as a dispute resolution mechanism in the Commonwealth, including that more than half of Commonwealth countries do not have a structure that reflects modern best practice, with a small number not having a legislative framework for arbitration at all; costs; the lack of awareness of international commercial arbitration; the unmet needs of SMEs; and a lack of diversity of the international arbitration community. The study sets out seven solutions, including measures countries can take to boast a modern best practice international commercial arbitration framework; how to ease costs; how to increase awareness and build capacity; and how to enhance diversity. The Study also discusses the use of technology and the establishment of a bespoke B2B cross-border commercial dispute settlement mechanism.

Keywords: international commercial arbitration, international dispute resolution, law in the Commonwealth, comparative law

JEL Classification: K; F