Arbitration’s development must maintain parity with litigation, judge warns

Development of commercial arbitration to resolve business disputes cannot be separated from need to support justice as a whole, warns former judge at ICCA Congress in Edinburgh


The former UN High Commissioner for Human Rights, the Honourable Louise Arbour, opened Monday’s proceedings at the ICCA Congress in Edinburgh with speech stressing that while international commercial arbitration’s development had furthered global prosperity and peace, it could not be viewed in isolation from wider moral, social or economic mores. 

Arbour, a former justice of the Supreme Court of Canada and a senior counsel at Toronto-based law firm Borden Ladner Gervais, said that as optimistic as arbitration’s development was, the privatisation of commercial justice should not undermine the development of the other parts of the court system, including litigation, in upholding its legitimacy. 

Arbour emphasised the importance of metrics for measuring arbitration’s success, noting that the interface between international arbitration and enforcement by local state courts was crucial. Her speech, ‘Arbitration’s age of enlightenment: a celebration or a challenge?’, was a thoughtful opening to the first full day of the Congress.

It echoed previous criticism of ADR made by the former Lord Chief Justice of England & Wales, Lord Thomas, as to the extent arbitration supports the development of the common law. 

It also delicately reminded delegates of questions raised over the propriety of other modes of commercial dispute resolution, such as investor-state dispute settlement, which civic society groups have criticised. 

Arbour’s address led directly into the main programme, including a debate on Wednesday between Duxton Hill Chambers’ Toby Landau KC and White & Case’s Carolyn Lamm on whether the world would be a better place with or without investment arbitration.

Outside the plenary programme, Monday saw delegates observe a break in proceedings to watch the state funeral of Queen Elizabeth II, alongside the national moment of remembrance held on Sunday. Most social events were cancelled, with White & Case, Keating Chambers, Essex Court Chambers and CMS all withdrawing as a mark of respect or due to the public holiday leading to associated closures. 

Earlier, a joint ICCA-American Society of International Law task force on damages launched a new web application, first developed in 2021, that provides guidance on the critical legal, quantitative and procedural issues implicated by quantifying damages in international arbitration. Delegates took part in a discussion led by co-chairs Catherine Amirfar of Debevoise & Plimpton and Gabrielle Nater-Bass of Homburger.

The conference also saw the launch of the most recent edition of the ICCA-New York City Bar-CPR Protocol on Cybersecurity in International Arbitration. Congress chair Brandon Malone hosted delegates at a lunch event, focusing on using voluntary cybersecurity protocols in such proceedings. 

The Global Legal Post will be publishing a Law Over Borders comparative guide to arbitration. For further details email associate publisher [email protected]

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