Home arbitration INTERNATIONAL ARBITRATION: POTENTIAL APPEAL MECHANISM WITH FOCUS ON INDIA

INTERNATIONAL ARBITRATION: POTENTIAL APPEAL MECHANISM WITH FOCUS ON INDIA

1. ABSTRACT

This article shall be neutral on the question that whether appeal mechanism should be there or not for arbitrations and shall present the picture of  both the existing appeal mechanism, process of appeal mechanisms and the potential of future appeal mechanisms along with the advantages and disadvantages associated with the idea of potential appeal mechanism. The article shall also entail certain suggestions on how to adopt a mid-way for establishing the appeal mechanism so that neither of the parties to the arbitration go back to their home feeling disappointed for having chosen this medium for resolving their dispute.

The suggestions laid down the research paper shall be detailed and is the result of analyzing various suggestions available on the net as provided by various authors in their respective articles. Finally, the research paper shall conclude by finally laying down in gist all about the potential appeal mechanism in international Arbitration.

2. INTRODUCTION

The customary absence of available appeal machinery in arbitration, in distinction to courts, is commonly known as the finality feature of arbitration. This feature is often regarded as one of the most likable advantages of arbitration. But, another side to the story is that we cannot pretend for one minute that tribunals always reach the right result

In most cases, a disappointed party to domestic or international arbitral proceedings can only try to set aside the award or resist enforcement via national courts. The grounds for setting aside an award or resisting its enforcement are very slight and limit the options of the disappointed party to challenge the award.

While parties can agree to submit their award to an arbitral appeal, this usually does not happen because, in the absence of agreement to appeal in the original arbitration agreement, the winning party in most cases has no motivation to agree to another round of arbitration proceedings.

When asked to list the benefits of arbitration over litigation, many would say ‘finality’ or ‘certainty ‘of the arbitral process because of the finality of the ‘award’ and lack of appeal mechanism. In the Queen Mary/White & Case LLP Survey ‘2015 International Arbitration Survey: Improvements and Innovations in International Arbitration’, 18% of the respondents named finality as one of their three most valuable characteristics of arbitration. Also, on the other side 17% also mentioned a lack of appeal mechanism on the merits as one of the three foulest characteristics of arbitration—perhaps those 17% are the ones who have felt the pain of this right of appeal being precluded.[1]

Further, Appellate practice in international arbitration presents a paradox. It is, at once, a recognized practice and a forbidden system. The status it carries depends on the forum in which the parties find themselves, and the sort of dispute they pursue to resolve. Commodity trade associations provide for arbitral appellate processes, and on a much grander scale, international trade disputes are regularly reviewed by the World Trade Organization’s (“WTO”) internal Appellate Body.[2]

Also, Commercial disputes in France, Belgium and South Africa are eligible for institutional appeal and the incorporation of an appellate mechanism is currently under review for some bilateral investment treaties (BITs) and multilateral investment treaties (MITs).[3] However, most parties to international commercial and investor-state arbitration have no opportunity to appeal arbitral awards.

3. HISTORICAL REVIEW OF THE FINALITY PRINCIPLE IN ARBITRATION

The finality of arbitration goes back long in time. In ancient Greece, there were two types of arbitrations—public arbitrations and private arbitrations. Private arbitrations were based on a third person appointed by the disputed parties to resolve their dispute.[4] As the disputed parties would agree orally or in writing to comply with his arbitral award, there was no appeal mechanism.[5]

In Roman times, arbitration was widely used and it was also in general with no appeal mechanism.[6] The idea of finality was stated in ancient Roman sources: ‘[t]he award of the arbiter which he makes with reference to the matter in dispute should be observed with, whether it is just or unjust; because the party who acknowledged the arbitration had only himself to blame’.[7]

India has had a long tradition of arbitration. The settlement of differences by tribunals selected by the parties themselves was well known in ancient India. There were in fact, different grades of arbitrators with provisions for appeals in certain cases from the award of a lower grade of arbitrators to arbitrators of the higher grade.[8]

However with the dawn of British and later with the introduction of Arbitration and Conciliation Act, the appeal mechanism apart from challenging the awards in the local courts and the rule of appellate arbitration clauses, was no longer there to a great extent and was only available in exceptional circumstances provided in the Act itself.

4. EXISTING INTERNATIONAL ARBITRATION APPEAL MECHANISM

4.1. Disallowing Appeal

The rules of the leading arbitral institutions provide, in some form of wording, for their awards to be ‘final and binding’ on the parties. For Instance, the London Court of International Arbitration (LCIA) and the International Chamber of Commerce (ICC) being the clear examples, go further and provide that the parties waive irrevocably their right to submit the award to any form of appeal, recourse or review to any state court or other legal authority so far as such waiver is not forbidden under any applicable law.[9]

The effect of this under English law as set out in the Arbitration Act 1996 (AA 1996) is to preclude the right to appeal on a point of law as comprehensible by s 69 of AA 1996.  However, there are certain exceptions to this as one cannot disqualify a challenge for lack of substantive jurisdiction under s 67 of AA 1996, or on grounds of serious irregularity under s 68 of AA 1996, as these cannot be waived.

4.2. Advantageous or Disadvantageous?

Both would be the perfect answer. To one party it is advantageous and to the other disadvantageous. The advantage of ‘certainty’ in this regard at the outset of an arbitration can, however, feel painful if an award is made against you and your right of appeal is limited. 

4.3 International trade appeals processes

Appellate review of international trade disputes is well recognized. Not only has the WTO Appellate Body been in being for more than an era, but smaller trade organizations have also provided appeals of arbitration awards.[10] In February 1995, the WTO Dispute Settlement Body (“DSB”) provided for the creation of an Appellate Body, a Permanent international tribunal which hears appeals of WTO panel reports.[11] Further, the Southern Common Market, or MERCOSUR, has also incorporated an optional appeals court within its dispute resolution procedure.[12]

4.4. International commercial arbitration and the possibility for appellate review

While investor-state disputes involve governments and foreign investors, international commercial disputes are a more private matter. Traditionally, arbitration has been the favored means for settling international commercial disputes as it provides parties with the ability to bypass foreign legal systems, and the difficulties related to litigating in unfamiliar forums. Moreover, arbitration is driven by party autonomy: parties can elect arbitral institutions, arbitrators and rules which are particularly suited to their needs. Awards are usually confidential and enforcement is guaranteed under international law.

Nonetheless, most parties are precluded from requesting institutional review, or appeal, of international commercial arbitral awards. US courts, for example, have held that private parties cannot alter the judicial process by imposing “on the federal courts a broader standard of review than the grounds authorized by” the Federal Arbitration Act (FAA).[13]The grounds for judicial review of arbitral awards have been extremely limited in order to “preserve due process but not to permit unnecessary public intrusion into private arbitration procedures.[14]

4.5 The case for arbitral appeals in investor-state arbitration

When international trade arbitration awards are dubious, parties can turn to the appellate vehicle available to them for review of said award. But in investor-state disputes, parties who wish to challenge an award end up in a long-winded system of contract and treaty arbitration. Both the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (Washington Convention) and the North American Free Trade Agreement (NAFTA)  with few options for reviewing legally deficient awards.[15] To cure this deficiency, a cohesive and independent Appeals Facility must be established for review of investor-State arbitration awards.

4.6 Institutions allowing for Appeal:

As seen above, most arbitral institutions do not arrange for appellate mechanism within the arbitral arrangement. Nevertheless, three prominent arbitration institutions do provide for such mechanism, namely the International Institute for Conflict Prevention and Resolution (CPR), Judicial Arbitration and Mediation Services (JAMS), and the European Court of Arbitration (ECA). The institutions’ appeal rules standardize diverse characteristics of the appeal proceedings and provide us with different approaches as to how to conduct these proceedings.

First, with regard to the likelihood of appealing arbitral awards, both the CPR and JAMS require the parties to agree to the appeal in the arbitration clause or in a post-dispute arbitration agreement.[16] In the other words both organizations are based on an opt-in machinery. In contrast, the ECA arbitration rules provide that, subject to any applicable mandatory statutory provisions to the contrary, the parties are deemed to accept the possibility of appeal unless they unambiguously excluded it in the arbitration agreement or before the final hearing of the first arbitration.

Secondly, with regard to the configuration of the appeal panel, the rules of both the CPR and JAMS state the appeal panel will consist of three members unless the parties agree that the tribunal will be a sole arbitrator.[17]Both institutions allow the parties to choose the appeal arbitrators to some extent. The CPR provides the parties with a list of not less than seven candidates or not less than three candidates if the appeal tribunal is to be consist of a sole arbitrator.

According to Rule 4.2, if the parties fail to agree on the identity of the appeal panel, they shall submit the list of the CPR’s suggested arbitrators with the rank ordering the candidates on whom they did not agree. ‘Thereupon, the required number of candidates receiving the lowest combined score shall be chosen by CPR, which shall also break any tie.’ The procedure in JAMS appeal is diverse. The arbitrators will be nominated by the parties from a gradient prepared by JAMS. If the parties do not approve on the composition of the appeal tribunal within seven days, JAMS case manager will appoint the appeal panel.[18]

In distinction to the CPR and JAMS, which allow the parties to choose between a three-member tribunal or a sole arbitrator and give the parties the freedom to choose the appeal arbitrators, the ECA’s rules specify that the ECA ‘will appoint all the members of the Appellate Arbitral Tribunal consisting of three arbitrators, without the parties being involved in the least in such appointments and will fix the place of arbitration’.[19]

Thirdly, with regard to the room of the appeal, CPR allows appeal both on fact and law.[20] Similarly, the ECA states explicitly that it does not agree with the ‘general tendency […] to limit the review of arbitral awards to procedural errors’.[21]The ECA’s rules allow ‘a full review of the dispute by way of rehearing, including dealing in particular with admissibility, the facts and the merits’.[22]

In contrast, while JAMS rules do not state the explicit critarea for appeal, they do elaborate that the appeal panel ‘will apply the same regular of review that the first-level appellate court in the jurisdiction would apply to an appeal from the trial court decision’.[23]This means, at least in common law systems, that the appeals are limited to legal concerns.

Fourthly, both of the CPR and the ECA establish as a general rule that the loser in the appeal should pay the expenses of the appeal. However, while the CPR rules gives discretion to the appeal tribunal to swerve from this rule,[24] the ECA rules seem to leave no discretion to the tribunal.[25] In contrast, JAMS rules state that the ‘Award of the Arbitrator may allocate attorneys’ subscriptions and expenses and interest (at such rate and from such date as the Arbitrator may deem appropriate) if provided by the Parties’ Agreement or allowed by applicable law ’.[26]

Fifthly, both JAMS and the ECA set time restrictions for issuing the appeal award. JAMS rules stipulate that the appeal panel ‘will issue the decision within twenty-one (21) calendar days of the date of either oral argument, the receipt of the new evidence or receipt of the record and of all briefs, whichever is pertinent or later’.[27]The ECA rules allow more time to the appeal tribunal by elaborating that the appeal tribunal ‘shall make its award within six months, if there is no evidentiary stage, and otherwise within nine months of its acceptance of the file by rehearing the case and deciding it on its merits’.[28]

Sixthly, probably with alertness of costs and speed of the proceedings, JAMS rule provide the parties with the preference to conduct the appeal proceedings through written submissions only. According to the rules, the parties ‘might elect to rely on the minutes or briefs previously submitted to the Arbitrator(s)’. In the absence of such election, JAMS will try to obtain the agreement of the Parties on a briefing schedule and if no agreement is reached it will set the briefing schedule.[29] Furthermore, the rules establish that ‘[t]he Appeal Panel will conduct an oral argument if all Parties request such argument, or may conduct oral argument, in multifarious cases or unusual circumstances, on its own initiative’.[30]

There is no explanation on what constitutes ‘complex cases or unusual circumstances’. Finally, according to the rules ordinarily, only opening briefs (of no more than 25 double-spaced pages) will be allowed’.[31] The rule regarding the page-limit is enormously beneficial in plummeting costs as it both limits the legal counsel costs and the time that the arbitrators spend on reviewing the pleadings

5. POSSIBILITY OF APPEAL MECHANISM IN FUTURE?

There are diverse advantages for the lack of appeal mechanisms such as efficiency and saving the costs of the appeal proceedings. However these advantages are not free from problems, and therefore more and more voices in the international arbitration community are signifying that there is a need for an arbitral appeal mechanism.

Over recent months there has been much dialogue in the press and arbitral community about whether the right to appeal arbitral awards under English law should be widened. The supporters argue that a lengthened right of appeal would be in the interests of the development of English commercial law. Their opponents responding, among other quarrels, that it is not the arbitrating parties’ jobs to advance English law and that the drive behind AA 1996 to limit court intervention in arbitration was partly led by a respect for parties’ choice to arbitrate and resolve their disputes away from the court.[32]

What this does raise, however, is the possibility of expanded right of appeal (or maybe making s 69 of AA 1996 mandatory) in the future. This would be a significant change for English arbitration law and potentially impact London’s standing as a leading and prominent arbitral jurisdiction. Also, other leading arbitral jurisdictions such as Singapore permit an appeal on a point of law to be excluded in the same way as English law which the Singapore International Arbitration Centre Rules preclude in the same way as the ICC and LCIA.[33]

The establishment of a mechanism for appellate review of investor-state arbitral awards is inevitable. Based on the fact that multiple treaties are considering the creation of appellate review instruments, it is likely that more than one mechanism will be established. However, the creation of multiple systems of review will intensify existing challenges of developing a consistent body of jurisprudence and will have detrimental consequences for stability in this area of the law.[34]

Whereas a “single, preferably institutionally-managed and widely-accepted” mechanism for reviewing investor-state arbitral awards would be best suited to address the risk of “fragmentation of the dispute settlement system that” might otherwise ensue.[35] Therefore, an Appeals Facility should be introduced, separate and distinct from existing arbitral institutions.

6. POTENTIAL APPEAL MECHANISM IN INDIA

Appellate arbitration clauses provide for an appellate mechanism against an award rendered between the concerned parties by subjecting the dispute through another arbitration to eliminate all probable errors and obtain correction of the same. Not all arbitration disputes are appropriate for an appellate review.

But in cases where parties place higher standing on the correctness of an award rather than on time and cost of arbitration, appellate arbitration clauses serve this purpose. Since the grounds on which an award may be challenged before a court remain limited, as can be seen from the UNCITRAL Model Law and the Indian Arbitration and Conciliation Act, 1996 (“1996 Act”), appellate arbitration clauses provide larger freedom of review of arbitral awards to parties resorting to them.[36]

Recognizing the importance of such clauses, a three-judge bench of the Supreme Court of India (“Supreme Court”), delivered a judgment on December 15, 2016 upholding the legal validity of appellate arbitration clauses under the 1996 Act in the case of M/s Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd., (“Centrotrade”)[37].

In Centrotrade, the arbitration agreement contained a two-tiered arbitration procedure providing for a first instance institutional arbitration in accordance with the Rules of Arbitration of the Indian Council of Arbitration (“ICA Rules”) to be held in India. In the event of dissimilarity between the parties in respect of the correctness of the first award, the arbitration agreement granted either party a right to appeal against the first award before an appellate tribunal to be constituted in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce (“ICC Rules”), to be held in London. The law of the main contract was Indian law.

7. SUGGESTED INTERNATIONAL ARBITRATION APPEAL MECHANISM

It is our view that the right to appeal is a significant element for doing justice. It is clear that other international arbitration institutions are recommended to provide this option as the parties are hesitant to create by themselves an ad hoc mechanism. However, such mechanism should report the apprehensions of the key players to be effective and popular.

To deal with the concern regarding the finality of the proceedings, the suggested mechanism is based on opt-out mechanism, subject to any pertinent to national law to the contrary. In other words, the parties can choose in advance that they do not want to subject their arbitration to appeal. Otherwise, the first instance arbitral awards will be subject to appeal within a certain time limit.

Regarding the possible endurance of the proceedings, there are different means to shorten the proceedings. These means will also cut the costs of the proceedings as shorter proceedings will reduce the costs.

First, in contrast to the different models of deciding the arbitration panel, it is recommend that the appeal panel should be composed of two arbitrators unless the parties wish the panel to be composed of one or three arbitrators, which will render a majority-based appeal decision. Using two arbitrators is superior to using three arbitrators because it reduces costs.

In addition, the nomination of two arbitrators is also better than using one arbitrator because it permits the parties to each choose an arbitrator that they trust. However, to side-step any even far-flung risk conflict of interests, when the parties themselves and not the arbitral institution, choose the appeal arbitrators, they will be appointed by the arbitral institution without disclosing which side has chosen each arbitrator.[38] This organization of blind appointment of party appointment arbitrators is a part of the new MARC Arbitration Rules, although the blind appointment is subject to the parties’ agreement.[39]

According to this recommended model, the appeal panel will have jurisdiction to review fact and law issues regarding the award. The appeal panel may also request elucidations from the first-instance tribunal before they decide whether to differ from the first-instance award. Only when both appellate arbitrators believe that the award was wrong on an issue, they will issue a new award or a correction to the previous award. When the appellate arbitrators are not in consensus to defer from the award, the award becomes final.

Secondly, the appeal proceedings should be conducted via written submissions. All the constituents of the first instance arbitration will be in the record. Thus, the appeal panel will be able to go through the pleadings, witness statements and hearing transcripts to fully review the award. Accordingly, the parties may designate to rely solely on the pleadings previously submitted to the first instance arbitration or submit new pleadings in addition.

Thirdly, the arbitral institution should set explicit page limits regarding the written submission. The problem of prolonged submissions has been in the center of academic dissertation in both litigation and arbitration. While distinguished arbitrators already called for the imposition of page limits very little was done. This could be explained by the parties’, or more accurately their legal counsel’s, objection.[40]

Nevertheless, as parties are concerned about the possible costs and the perpetuation of the proceedings, it is necessary to set page limits for the written submissions in the appeal mechanism. JAMS should be read and preferred for their clear rules on this aspect.[41] We propose a 50-page limit for the statement of case/defense and 25-page limit for the reply/rejoinder. However, as some complicated cases may require more extended submissions, if the parties so request and the tribunal agrees, the page limit could be changed.

Fourthly, as hearings are expensive, they will be permitted only if the parties consider it necessary. When there is a need for oral communication the appeal tribunal can use Skype or conference call. If the parties wish oral hearings, they should inform that the arbitral institution in advance. Then, to the extent possible, the arbitrators should be chosen from the same place. This would diminish travelling costs and will ease the management of the technical details regarding the hearing.

Fifthly, the appeal award should be drafted with no reasons if the appeal panel decides to sustain the first instance award. However, if the appeal panel decides to change the award, the appeal panel should provide the parties with crisp reasons to explain its decision. This rule, naturally, should be subject to the parties’ agreement; whether they agree that the award should not include explanations although the appeal panel decides to change the award, or that the appeal award should comprise reasons even when the appeal panel decides to discard the appeal.

Finally, similarly to JAMS and the ECA, the time for concluding and delivering the appeal award must be set in advance. Setting a time limit for drafting the award is becoming prevalent in general arbitral proceedings. For example, the ICC Rules stipulate that as a general rule the arbitral tribunal must render its final award is six months.[42] In the same vein, International Centre for Settlement of Investment Disputes (ICSID) arbitration rules establish that the tribunal must complete its award within 120 days after closure of the proceeding.[43]

While arbitrators do not like these time limits, they are compulsory if we wish to address the concern about the length of the appeal proceedings. While writing awards can be a time-consuming task, there is no objective reason why they cannot be completed very quickly if the award is without reasons or in four months if the award is with reasons. Thus, the awards without reasons should be issued within 30 days from the final submission or the hearing. If the award is with reasons it should be issued within four months. This deadline is in the middle between the two deadlines proposed by JAMS and the ECA.

To ensure acquiescence with the deadline for drafting the award, it is suggested that every week delay will result in a decrease of the arbitrators salary unless the delays is attributable to factors beyond the arbitrators’ control or to exceptional circumstances, and without prejudice to any other measures that the arbitral institution may take, such as swapping one or more of the arbitrators. This approach is not novel.

The ICC published already in 2016 that it will reduce the fees of arbitrators who fail to meet the deadlines of rendering the draft awards for scrutiny by the ICC.[44] We suggested a reduction of 2 per cent for one week delay. Such anticipated reduction should inspire arbitrators to finish the awards on time without being considered a punitive sum.

In terms of allocation of costs, subject to the parties’ express wishes as extended in the arbitration-appeal agreement, it is suggested that the appellant will credit a reasonable sum to pay for the expenses of the appeal panel. When the appeal panel differs from the first instance award, it will issue a decision regarding the allocation of costs, and follow the rule that costs follow the event, i.e. loser pays, unless it trusts that this will be biased to do so due to the facts of the case.[45]

8. CONCLUSION

The understanding that international arbitrations are not subject to appeal has become leading. The idea branches from the long standing principle of the finality of the arbitration award. While there is no doubt that limiting the ability of parties to international arbitration to appeal to national courts is in general positive as it augments the stability and predictability of the system, arbitral users are left with a gap in their ability to pursue justice when they believe that the award is wrong.

But, another side of the story is that it is true within judicial proceedings that arbitral awards are sometimes based on misapplications of law or misconstruing of objective evidence.  Even arbitrators may be fallible. If parties wish to safeguard against such human frailties, they should be allowed to do so.

Indeed, as this article shows, the right to appeal is an important element of access to justice. Therefore, an optional arbitral appeal mechanism will encourage courts to reject requests to set aside arbitral awards and strengthen trust in international arbitration. While arbitration institutions might be reluctant to change their rules and allow an appeal mechanism, this unwillingness is not justified. As explained amply by Professor Wallace:

If judges of first instance, with a life-time of experience and training, and are under the full glare of promotional, are subject to appellate control and review in this area, there must be a strong if not overwhelming case for arbitrators’ institutions, in their own enlightened self-interest, to welcome, and not to seek to exclude, control in this area as well as in the area of mistakes of law.[46]

The question is therefore what appeal mechanism will function the arbitration users best. With this question in mind, the article recommends an efficient appeal mechanism which addresses the arbitration users’ concerns regarding the duration and costs of the proceedings. While international arbitration has developed tremendously in the past 15 years, it seems that very little has changed when it comes to appeal arbitration. It is thus hoped that this article will persuade international arbitral institutions to consider amending their rules and include specific provisions that will introduce and regulate effective arbitral appeal mechanisms.


[1]<https://www.lexisnexis.co.uk/blog/dispute-resolution/the-appeal-of-finality-in-arbitration> accessed 8 September 2019.

[2] Erin E. Gleason, International Arbitral Appeals: What Are We So Afraid Of? , 7 Pepp. Disp. Resol. L.J. Iss. 2 (2007).

[3] Id.

[4] Sheila L Ager, ‘Arbitration’ in Michael Gagarin (ed), The Oxford Encyclopaedia Ancient Greece and Rome, vol 1 (OUP 2010) 151-152.

[5] The Oxford Encyclopaedia Ancient Greece and Rome, vol 1 (OUP 2010) 152; Derek Roebuck, Ancient Greek Arbitration (Holo Books 2001) 206; Gary B Born, International Commercial Arbitration, vol 1 (2nd edn, Wolters Kluwer 2014) 26.

[6] Derek Roebuck and Bruno de Fumichon, Roman Arbitration (Holo Books 2004) 28; Frederic Sanborn, Origins of the Early English Maritime and Commercial Law (Century Co 1930) 8–9; Peter Stein, ‘Arbitration Under Roman Law’ (1974) 41 Arb 203–04.

[7]Digest, 2, 4, 8, 27 (Ulpian), in Samuel P Scott (ed), The Civil Law, vol 3 (Central Trust Company 1932); Reinhard Zimmermann, The Law of Obligations (OUP 1996) 529; Roebuck and de Fumichon (n 4) 184.

[8] Bibek Debroy and Suparna Jain, Strengthening Arbitration and its Enforcement in India – Resolve in India 6-7.

[9]<https://www.lexisnexis.co.uk/blog/dispute-resolution/the-appeal-of-finality-in-arbitration> accessed 8 September 2019.

[10] WTO, UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), art. 17 (1995).

[11] Id.

[12] 6 UNCTAD, COURSE ON DISPUTE SETTLEMENT ON INTERNATIONAL TRADE, INVESTMENT AND INTELLECTUAL PROPERTY, REGIONAL APPROACHES, MERCOSUR, at 20, <http://www.unctad.org/en/docs/edmmisc232add28-en.pdf> accessed 9 September 2019.

[13] Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 997 (9th Cir. 2003) (emphasis added); see also Bowen v. Amoco Pipeline Co., 254 F.3d 925, 933 (10th Cir. 2001).

[14] Erin E. Gleason, International Arbitral Appeals: What Are We So Afraid Of? , 7 Pepp. Disp. Resol. L.J. Iss. 2 (2007) < https://digitalcommons.pepperdine.edu/drlj/vol7/iss2/5>.

[15] William H. Knull, III & Noah D. Rubins, Betting the Farm on International Arbitration: Is it Time to Offer an Appeal Option? REV. INT’L ARB. 531, 531 (2000).

[16]CPR, ‘General Commentary for CPR Administered Arbitration Rules’ (CPR) <https://www.cpradr.org/resource-center/rules/arbitration/administered-arbitration-rules/_res/id=Attachments/index=1/2013-administeredarbitrationCommentary_6–25–13-after-olivier.pdf> accessed 9 September 2019; JAMS, <https://www.jamsadr.com/appeal/> accessed  9 September 2019.

[17]2014 CPR Rules for Administered Arbitration of International Disputes (hereinafter ‘CPR Rules’), Rule 5.1; JAMS Optional Arbitration Appeal Procedure, para (a).

[18]JAMS Optional Arbitration Appeal Procedure, para (a).

[19]ECA Rules, art 28.5.

[20]CPR Rules, r 8.

[21]The European Court of Arbitration, ‘The Main Points of CEA’s Rules’ (ECA) <http://cour-europe-arbitrage.org/faq/read-more-why/> accessed 8 September 2019.

[22]ECA Rules, art 28.5.

[23]JAMS Optional Arbitration Appeal Procedure, para (d).

[24]See CPR Rules, Rule 12, an unsuccessful appellant is required to reimburse the appellee’s legal fees and other costs of the appeal, unless the tribunal orders otherwise.

[25]ECA Rules, art 27.8 (‘unsuccessful party shall reimburse to the successful party that party’s costs and attorney’s reasonable fees, as it be determined by the Arbitral Tribunal’).

[26]JAMS Comprehensive Arbitration Rules & Procedures, Rule 24(g).

[27]JAMS Optional Arbitration Appeal Procedure, para (d).

[28]ECA Rules, art 28.7.

[29]JAMS Optional Arbitration Appeal Procedure, para (b) (iv).

[30]ibid, para (b) (v).

[31]ibid, para (b) (iv).

[32]<https://www.lexisnexis.co.uk/blog/dispute-resolution/the-appeal-of-finality-in-arbitration> accessed 10 September 2019.

[33]<https://www.lexisnexis.co.uk/blog/dispute-resolution/the-appeal-of-finality-in-arbitration> accessed 10 September 2019.

[34] 3 OECD, Working Papers On International Investment, Improving The System Of Investor-State Dispute Settlement: An Overview (2006), <http://www.oecd.org/dataoecd/ 3/59/36052284.pdf>.

[35] Id.

[38]Professor Jan Paulsson, ‘Moral Hazard in International Dispute Resolution’ (Inaugural Lecture at the Michael R Klein Distinguished Scholar Chair, University of Miami School of Law, 29 April 2010) <http://www.arbitration-icca.org/media/0/12773749999020/paulsson_moral_hazard.pdf> accessed 7 September 2019; Sergio Puig, ‘Blind Appointments in Arbitration’ in Christopher T Robertson and Aaron S Kesselheim (eds), Blinding As a Solution to Bias: Strengthening Biomedical Science, Forensic Science, and Law (Academic Press 2016). See also Neil Kaplan’s speech on ‘Party Appointment Arbitrators’ delivered at the Regional Arbitration Institutes Forum in Hong Kong on 14 October 2017.

[39]MARC Arbitration Rules 2018, art 8.1(d).

[40]See for example, Pac Rim Cayman LLC v The Republic of El Salvdor, ICSID Case No ARB/09/12, 6.39 (‘[T]he Claimant requested flexibility on the page limit and then abused the Tribunal’s indulgence in granting such flexibility by filing a separate thirteen-page written submission on costs… ‘). See also however, Hochstrasser (n 64) (‘It is interesting to note, in that context, that criticism is sometimes raised by the same colleagues who act as counsel in arbitration proceedings, and in that capacity do not contribute to efficient proceedings by using the very tactics they otherwise criticize.’).

[41]JAMS Optional Arbitration Appeal Procedure, para (b)(iv).

[42]ICC Rules, art 30.

[43]ICSID Convention Arbitration Rules, Rule 46 (‘the award (including any individual or dissenting opinion) shall be drawn up and signed within 120 days after closure of the proceeding. The Tribunal may, however, extend this period by a further 60 days if it would otherwise be unable to draw up the award.’).

[44]See ICC, Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration 2016 (ICC, 22 February 2016) paras 92 and 94.

[45]See for comparison other similar rules regarding allocation of costs in first instance arbitrations. For example, PCA Arbitration Rules 2012, art 42(1) states ‘the costs of arbitration shall in principle be borne by the unsuccessful party or parties. However, the arbitral tribunal may apportion each of such costs between the parties if it determines that apportionment is reasonable, taking into account the circumstances of the case’. See also 2010 UNCITRAL Arbitration Rules, art 42(1) and art 52(2) of the CIETAC Arbitration Rules 2015.

v[46] Duncan Wallace, ‘Control by the Courts: A Plea for More, Not Less’ (1990) 6 Arbitration International 253, 267.

This article is written by Rishika and edited by Rupreet Kaur Dhariwal.

Must Read

Social Security of Interstate Migrant Building and other Construction workers in Kerala

Abstract : Kerala state, which accounts for 1.18 per cent (38863 square kilometres) of the total land area of...

Company law

Significance of Company Laws Knowledge for the Lawyers: Attorneys and particularly the one...

Right to Information Act, 2005

There was always a strong demand for a formal law on freedom of information. The states of Goa,...

Appropriate art and fair use

by Shreya Mishra Appropriate art and fair use The US Court of Appeals for...

Related News

Social Security of Interstate Migrant Building and other Construction workers in Kerala

Abstract : Kerala state, which accounts for 1.18 per cent (38863 square kilometres) of the total land area of...

Company law

Significance of Company Laws Knowledge for the Lawyers: Attorneys and particularly the one...

Right to Information Act, 2005

There was always a strong demand for a formal law on freedom of information. The states of Goa,...

Appropriate art and fair use

by Shreya Mishra Appropriate art and fair use The US Court of Appeals for...

Cyber law

by Shreya Mishra What is Cyber Law? Digital law resembles...