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May 2011

[This is the outline of my presentation at the Chartered Institute of Arbitrators Asia-Pacific Conference 2011, in Sydney over 27-28 May. (A PDF version including full references and hyperlinks can be downloaded here.) It draws on research for the project, 'Fostering a Common Culture in Cross-Border Dispute Resolution: Australia, Japan and the Asia-Pacific', supported by the Commonwealth through the Australia-Japan Foundation which is part of the Department of Foreign Affairs and Trade.]

Concerns about growing delays and (especially) costs in International Commercial Arbitration (ICA) have spread from West to East:

Advantages of ICA over Cross-Border Litigation (‘East’ vs ‘West’)
Response: ‘highly relevant’ or ‘significant’(* Statistically significant at 99% confidence level)
Region of Practice: East (Ali study ‘06) West (CBU ‘94)
Forum’s neutrality 88 (%) 78 (%)
Forum’s expertise 83 76
Results more predictable 36 42
Voluntary compliance* 42 24
Treaties ensure compliance abroad 85 69
Confidential procedure* 76 56
Limited discovery 47 56
No appeal 64 58
Procedure less costly 36 20
Less time consuming* 57 35
More amicable 52 35

This is also a major and longer-standing concern about Japanese corporations, for example, which explains why they still do not contest many ICA cases (even at the JCAA) despite increasingly incorporating arbitration clauses in cross-border contracts. The ICC, which has a growing Asia-Pacific caseload, has produced a useful Report suggesting various means to manage costs and delays. Yet the ICC distinguishes itself as a ‘high-quality, high-cost’ arbitral venue, evidenced eg by the hands-on service provided by its Secretariat and its ‘Court of Arbitration’. My presentation therefore proposes measures that are often more radical, and which may be particularly suited for ICA involving Australian and Asian parties.

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