- International arbitration is increasingly the mechanism of choice for resolving disputes with a cross-border element.
- Some of the benefits include privacy of proceedings; the power to choose the arbitrators; the relative ease of enforcing an arbitral award internationally as compared to a court judgment; and the potential savings in time and cost.
- There are a few aspects of international arbitration practice which Australian lawyers and their clients should consider adopting in order to realise the promise of arbitration as a more flexible and cost-effective method of dispute resolution.
International arbitration is increasingly the mechanism of choice for resolving disputes with a cross-border element and it’s for good reason. Some of the benefits include:
- the ability to arbitrate in private;
- the power to choose the arbitrators best suited to the particular dispute; and
- the fact that arbitral awards can be easier to enforce internationally than court judgments, as a result of the widely-adopted New York Convention.
Supporters of arbitration also argue that it is a cheaper and more flexible process than traditional court litigation. These claims draw particular scepticism from its detractors. Both sides are right. The consensual nature of arbitration allows parties far greater freedom to tailor procedures to best suit their dispute, and to save costs. All too often, however, parties do not take advantage of that freedom, falling back on familiar court-style procedures and eroding the important differences between the two fora.
This article surveys three aspects of international arbitration practice, which Australian lawyers and their clients should consider adding to their arsenal. Each is the result of the alchemy of the international arbitration system, which throws together lawyers with a wide variety of backgrounds and legal training, from both the common law and civil law traditions.
Of course, the point is not that these practices are inherently better or cheaper than the court-based equivalents – rather, it is that taking full advantage of the arbitral process requires a greater openness to adopting them.