Research Proposal: Role of International Commercial Arbitration

REFLECTIVE RESEARCH DIARY

The following is an account of the researcher’s reflections on the above research proposal. This serves as a detailed history of the researcher’s research process as it started unfolding once the research was initiated. This is also a part of the research method which explains how the proposal took its shape. This is a record of events relating to the writing of the accompanying proposal. Instead of collecting all the details upfront before writing [1] , one is advised to start writing as one starts reading the materials as the foundations for the proposal, which the researcher followed. The period of four weeks spent for writing of the proposal has been divided into four weekly phases of the writing process

Week 1

With confusion as to which source to start from, the researcher, out of curiosity, started reading the Arbitration Act of 1996 from the beginning anxiously looking for any mention of international commercial arbitration in the provisions of the Act. The researcher chose to read the Act first since the Act, as the primary source and as the national legislation on the subject, should be containing some provisions regarding international arbitration. He stumbled upon in the III part of act, the mention of “Enforcement of Geneva Convention awards”. It appeared as an ideal starting point serving to kindle the researcher’s interest on International Commercial Arbitration. There is a mention of New York Convention Awards under section 100 of the Act. Sub Section 4 explains the meaning of “the New York Convention”. It is the convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted as early as in 1958 by the United Nations Conference on International Commercial Arbitration. [2] Section 101 deals with recognition and enforcement of awards. Of course, it refers to only the foreign awards under the New York Convention. [3] Going back to section 100 (2), it is found that an arbitration agreement must be in writing. So, the researcher wonders that absence of this very requirement can make a foreign award based on an oral arbitration agreement unenforceable. Then, it says that “agreement in writing” and “the seat of the arbitration” under this section have the same meanings as in Part 1 of the Act. As such, it is felt worthwhile to read the Parts 1 and 2 also in depth and on reading, his knowledge on the subject starts expanding and he concludes that certain principles applicable to Domestic Arbitration should be applicable to International Commercial Arbitration also. Thus, exposure to this Act serves to be an eye opener for this researcher and hence he decides to give a quick reading of the entire Act before proceeding any further. So, it is discovered that there are principles commonly applicable to both the Domestic Commercial Arbitration as well as the International Commercial Arbitration. The appointment of arbitrators according to the choice of parties, impartiality of the Arbitrators, removal of the Arbitrators, general duties of the parties are almost the same for International Commercial Arbitration. Knowledge thus gained enables the researcher to move on to other segments of the proposal with confidence. Further, the part III of the 1996 Act is a continuation of Part II of the Act of 1950. [4] Section 35 (1) says that this 1950 Act would apply to awards made after the 28th Day of July 1924 and also to any order in council under The Arbitration ( Foreign Awards) 1930 would be deemed to have under the section 35 of 1950 Act. Hence it appears that the U.K. has taken care to legislate on International Commercial Arbitration as far as it applies to Foreign Awards as early as in 1924. The whole week spent on reading of the Act has been a strong foundation for the superstructure of the proposal.

Week 2

The advice to start writing while reading somewhat conflicts with the idea of furnishing draft table of contents for the proposed research. This amounts to keeping everything ready before writing. However, the word “draft” before the term table of contents convinces this researcher this is more of a plan for a project and the end result need not necessarily be the same. Without a plan no project can be successful and the same applies to this research. With the preliminary knowledge gained after reading the Arbitration Act 1996, the researcher starts consulting the text books and theses online for possible topics that this research will have to deal with. Thus emerged the following possible topics to be shown as draft table of contents. And the researcher has taken care to inform the audience that these are only provisional with some of them being deleted and some new topics emerging as the research progresses after this proposal is approved.

The proposed topics for research

What is International Arbitration, Characteristics of Commercial Arbitration and special characteristics of International Commercial Arbitration?

Legal framework for International Commercial Arbitration

International Agreements, Conventions, and Treaties.

Advantages and disadvantages of international arbitration

Choice of Law in International Commercial Arbitration

UNICITRAL

Enforceability of International Arbitration Agreements

Regional Multilateral Treaties

Bilateral Investment Treaties

Arbitral Institutions – International such as International Chamber of Commerce International Court of Arbitration, London Court of International Arbitration, International Centre for Settlement of Investment Disputes and others

Case law: leading international cases on choice of law, enforceability, substantive law, procedural law, impartiality of arbitrators etc.

Critical analysis and conclusion on the effectiveness of enforceability of international arbitral awards [5]

Underneath the above each chapter, there are sub-topics and hence this whole week is spent on planning the research map. As already said, the above are not exhaustive but only indicative.

Week 3

The researcher starts reading synopsis of the above topics one after another and he has his own apprehensions about the order of priority accorded. But it looks sensible enough except may be for some of the topics. For example, the Arbitral institutions can take precedence over some of the topics. The researcher reassures himself that the actual research would end up in a logical order of topics which might require readjustment after completion but before presentation. This is what the whole research process is all about. The researcher finds that the International arbitration’s characteristics are almost the same as domestic arbitration as far as legality of arbitration clause, appointment of arbitrators, reference to arbitration, fees payable to arbitrators, involvement of courts of law at some stage or other except that the parties are from different national backgrounds resulting from inevitable clash or conflicts of laws of applicable and the need or desirability to agree upon the choice of law beforehand by the disputing parties concerned. It is also understood that this is precisely the reason why that international commercial arbitration requires a neutral forum acceptable to the disputing parties. In furtherance of the common objectives, the United Nations have drafted United Nations Commission on International Trade Law (UNCITRAL) [6] and issued UNCITRAL Model Law on International Commercial Conciliation which all the signatory nations are required adopt in their respective national legislations especially in regards to enforcement of foreign arbitration awards. Besides, the following rules have been enacted from 1958 to 2010 to govern the International Commercial Arbitration and Conciliation: [7]

2010 – UNCITRAL Arbitration Rules (as revised in 2010)

2006 – Recommendation regarding the interpretation of article II (2), and article VII (1), of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)

2002 – UNCITRAL Model Law on International Commercial Conciliation

1996 – UNCITRAL Notes on Organizing Arbitral Proceedings

1985 – UNCITRAL Model Law on International Commercial Arbitration (amended in 2006)

1982 – Recommendations to assist arbitral institutions and other interested bodies with regard to arbitrations under the UNCITRAL Arbitration Rules

1980 – UNCITRAL Conciliation Rules

1976 – UNCITRAL Arbitration Rules

1958 – Convention on the Recognition and Enforcement of Foreign Arbitral Awards – the “New York” Convention.

The above are quite exhaustive and the synopses are being read by the researcher for the limited purpose of writing this proposal and they have been useful in developing the research proposal this entire week.

Week 4

This week is crucial in that the researcher is wrapping up the proposal after dealing with enforcement of foreign awards. The enforcement of foreign awards is the most crucial chapter that serves to answer the research question of the propped research. Enforcement of foreign awards by the respective member States of the United Nations has been guaranteed by enactment of statutory provisions to that effect in their legislation on Arbitrations. The year 1996 is the cut off year when the member nations had to migrate to a new act modeled on UNICITRAL law as an international obligation. Cursory reading shows that enforcement of foreign awards is not all that complicated as it is feared to be at least in theory. The Act itself provides for situations in which or reasons for which a foreign arbitration cannot be or may not be enforced. The research should therefore zero in on to situations where foreign awards are not enforced for reasons other than above permitted ones in the Act. It is for this purpose that case law on enforcement of awards needs to be studied which the researcher leaves to the main research to be undertaken. It is not that this research is proceeded expecting something and pre-deciding something in advance. The researcher hastens to add therefore that there may or may not be exceptional situations. It may be due better or extended interpretations of statutory provisions by the legal luminaries who happen to act as arbitrators setting precedents and cancelling the old precedents giving way to new ones in keeping with the latest trends in the international commerce and international law. Therefore, with all the above reflections and contemplations, the researcher is completing the accompanying the research proposal and he is sure that exceptional or possible situations of foreign awards not being enforced by the member states should be thought provoking and should enhance the knowledge that would justify award of the master degree LLM.