International arbitration is a mechanism for resolving international disputes. And even if the definition is quite straightforward, it entails something more subtle, the wide array of international rules, treaties, and conventions.
At the end of the day, you can ask yourself, how is it possible that parties in different parts of the world could resolve a dispute? Nowadays, we take for granted all the architecture that allows international disputes to be resolved at the international level. And this architecture is the one responsible for making international arbitration a reality that long ago was just a dream.
In a previous post, I talked about arbitration being a trusted mechanism that has been around for quite some time. In such a post, there was this conflation between international arbitration without separating matters of public international law and private international law, and this is intentional. In the early days, countries could resolve their disputes through international arbitration; this was done through a special agreement (compromis) or through
And this is true, however at the early beginnings there was not an institutional framework, it was all done by bilateral agreements on an ad hoc basis. There were a lack of rules and lack of an established practice, this all then started with early developments like the rules for arbitration by the Institut de Droit International, which guidelines for administering arbitrations, but this guidelines could be followed or not. Then afterwards in 1899 there was the adoption of the Hague Convention for the Resolution of International Disputes, which created the Permanent Court of Arbitration. And things started to get more institutional.
However, there was still something missing, if international arbitration was serving the purposes of resolving disputes between countries, could that as well be extended to parties in different countries? And the answer was that it was possible, now the issue was to know how.
How it all came together? by a slow process and a little bit of luck I guess. This architecture for international arbitration comprises, in my point of view, a series of instruments and institutions that form part of this whole complex system of international arbitration.
Here it is the list, which implies as well the architecture for international arbitration:
- The 1899 Hague Convention for the Pacific Settlement of International Disputes
- The Permanent Court of Arbitration;
- The 1907 Hague Convention for the Pacific Settlement of International Disputes
- The creation of the League of Nations;
- The creation of the International Chamber of Commerce;
- the adoption of the Geneva Protocol on Arbitration Clauses of 1923, under the League of Nations, an initiative of the ICC (this was for the recognition of arbitration clauses);
- The Geneva Convention for the recognition of Foreign Arbitral Awards of 1927;
- the creation of the United Nations;
- the New York Convention of 1958;
- the creation of the World Bank;
- the creation of the International Centre for Settlement of Investment Disputes (ICSID) being an organization of the World Bank (1965), as well as the adoption of its rules for the settlement of foreign investment disputes;
- the creation of UNCTAD (United Nations Commission on Trade and Development);
- the creation of UNCITRAL (United Nations Commission of International Trade Law);
- the adoption of the UNCITRAL Arbitration Rules adopted in 1976;
- the adoption of the UNCITRAL Model Law in 1985
As you can see, the architecture for international arbitration is quite interesting, there is this conflation of public and private international law, which as well brings the question whether international arbitration should be on a league of its own, the type of international arbitrations that bring this type of question are foreign investment disputes, where to draw the line between private and public international law. When the dispute stop being a commercial one, and started to be a dispute regarding the interpretation and implementation of an international treaty.
The above architecture is not exhaustive, and it leaves out all the national arbitration laws adopted by each country that allow for the recognition and enforcement of foreign arbitration clauses and foreign arbitral awards, as well as all the arbitral institutions located in different parts of the world that are capable of administering international arbitrations, as well as law firms, think tanks and universities dedicated to the study and practice of international arbitration.
Hopefully, the above list helps you get a snapshot of the architecture of international arbitration.
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