News By/Courtesy: Vaishnavi Rastogi | 05 Jun 2024 14:43pm IST


  • Comparative law is crucial in ICA for navigating different legal systems and ensuring fair and effective arbitration.
  • The choice of arbitration venue significantly affects enforceability and procedural frameworks, requiring careful consideration of legal and cultural factors.
  • ICA's competitive nature demands proficiency in multiple legal systems and the ability to adapt to diverse procedural norms to maintain credibility and market position.

The Crucial Role of Comparative Law in International Commercial Arbitration (ICA)

International arbitration (ICA) practitioners must employ comparative law techniques because they guide parties through the intricacies of various legal systems. They are essential in cases where there is "too little law" or "too much law," since they guarantee arbitrators and solicitors have access to public materials. Not only does comparative law apply in international arbitration, but it also has theoretical ramifications for the development of transnational law and comparative law as a field. International Commercial Arbitration (ICA) relies heavily on comparative law since it gives arbitrators the authority to remove state courts' jurisdiction and provide binding verdicts on parties. A successful treaty on commercial law, the New York Convention, has compelled almost all states to adopt these ideas. To decide between arbitration and litigation, the parties must do a comparative law study considering factors such as time, money, procedural fairness, and judicial jurisdiction. Parties and their tribunal or an arbitral institution, which may be for-profit or nonprofit, may oversee arbitration. The arbitration venue is almost entirely up to the parties to select, taking into account things like cost-effectiveness, dependability, and accessibility to local legal representation. Either the tribunal or the administering body must select a seat if the parties are unable to agree on one.

Arbitration tribunals frequently select a venue based on the parties' inclinations towards up-to-date, dependable legislation, trustworthy courts, and cultural affinities. It's crucial to distinguish an arbitral seat from a courtroom, nevertheless, as the decision affects the arbitration agreement's enforceability. Hearings and discussions can take place anywhere in the world, and the seat need not be the controlling substantive law. Even when an arbitration agreement is included in a business contract, the parties may nevertheless choose to have it governed by separate contract laws. Using comparative law to identify the best applicable legislation for their transaction might be helpful. Tribunals may take into account both proposed laws if parties cannot agree on which law would apply. The substance-of-laws inquiry can be similarly important in international commercial arbitration since it highlights issues regarding who is responsible for determining the rules' content. To make an informed decision, advocates and attorneys need to unlearn and then relearn the law.

Balancing Legal Doctrines and Arbitrator Preferences

In International Commercial Arbitration (ICA), advocacy entails striking a balance between the requirement to clarify legal doctrine and the arbitrators' native legal system. This is more difficult when the prevailing law is based on legislation from another state since the laws and court rulings from those other states may have greater weight. Lawyers must strike a compromise between the necessity to make legal explanations and the requirement to employ language that is "plausible within the context of the original normative discourse." The arbitrator's training and legal experience are the primary determinants in this important decision. Parties frequently look for a fellow countryman who is conversant in their laws, business procedures, culture, and language. Arbitrators must take reasonable measures, taking into account potential obstacles in several jurisdictions, to guarantee the enforcement of a judgment. With so many options available on so many concerns that no one person could reasonably consider them all, this is referred to in ICA as the "too much law" phenomenon.

Procedural Framework and Comparative Analysis

The process of international arbitration (ICA) is intricate and multidimensional, including a variety of procedural techniques from many national jurisdictions. Because the institutional rules of procedure frequently do not provide advice on the admission of evidence, the panel and the parties must create a unique procedural framework for each arbitration. Comparative analysis is sometimes used to ascertain this because the tribunal would probably consist of arbitrators from several jurisdictions. For instance, the IBA Rules permit document discovery but prescribe a narrower scope than in the U.S. civil process to strike a balance between civil law and common law procedure. In contrast, the Prague Rules use a more continental European approach to gathering evidence and seek to provide shorter, less expensive procedures. This prevents arbitrariness and enables parties to think out an alternative course of action. Pressure to reach a consensus, with practitioners from a relatively limited number of developed states dominating, affects the process of reaching an agreement inside tribunals.

The Competitive Market of ICA

In a competitive market, international arbitration (ICA) exposes all players—parties, their solicitors, arbitrators, and tribunal secretaries—to a continual barrage of disparate legal systems and practitioners. In the Tower of Babel, comparative law techniques are necessary for just procedures and successful results. The conditions of competitiveness in the industry, for the social capital and market share it bestows, characterize ICA. Every level of the dispute resolution industry is still competitive: attorneys compete for clients, arbitrators compete for appointments, and arbitral institutions and states compete for a larger portion of the market. Arbitrators, attorneys, and arbitral institutions can respond to market demands and give credibility to the system by using comparative law. A career in international arbitration is commonly perceived as a progression from graduate school to employment as a junior associate in a commercial law firm or as counsel in an international arbitral institution's secretariat. To get into the sector, you need to have cosmopolitan qualifications like working with attorneys from different backgrounds and being fluent in many legal systems.

Section Editor: Harshita Kumari | 05 Jun 2024 22:47pm IST

Tags : #ComparativeLaw #InternationalArbitration #NewYorkConvention #ArbitralVenue #ProceduralFairness #LegalSystems #ArbitrationAgreement #LegalDoctrine #EvidenceAdmission #GlobalCompetitiveness

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