Review of awards in international commercial arbitration: time for an international commercial arbitral court of appeal

Irvanchi, Anahita (2021). Review of awards in international commercial arbitration: time for an international commercial arbitral court of appeal. University of Birmingham. Ph.D.

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Abstract

This thesis seeks to identify the main shortcoming of the current system of review within international commercial arbitration and provides suggestions for its reform. Two major international arbitration instruments, the New York Convention and UNCITRAL Model Law limit the scope of review in international commercial arbitration to protect the finality of arbitral awards and reduce the national courts’ involvement in the arbitration process. Review on the merits is almost absent in international commercial arbitration. The recourse available to the parties is usually limited to challenges on procedural irregularities and jurisdictional errors. The scope and the type of review are determined by the law of the seat of arbitration.

International commercial disputes have become more complex with higher stakes as a result of the globalisation of trade and an erroneous award may have considerable consequences. The lack of a substantive review mechanism would undermine the principle of fairness and may damage the credibility of international commercial arbitration. One of the reasons parties choose arbitration over litigation is its independence from the judiciary. However, the current system of review normally forces parties to challenge their arbitrational awards in the national court of the seat of arbitration.

This thesis proposes to expand the scope of review in international commercial arbitration without frustrating its main features such as finality and autonomy. Based on the delocalisation of the arbitral process theory, it argues that the best forum to review an international commercial arbitral award is a proposed International Commercial Arbitral Court of Appeal (ICACA). Such an institution would provide the opportunity for those parties with concern over fairness to have access to a truly independent dispute settlement mechanism.

The thesis goes beyond the current literature and provides a detailed analysis on the establishment of the proposed court by means of a new international convention. The function of the court is examined and suggestions for its structure, location, finance and time frame are provided.

Type of Work:

Thesis (Doctorates > Ph.D.)

Award Type:

Doctorates > Ph.D.

Supervisor(s):