Author: Caline Mouawad*
Published: September 2021
| Jurisdictions: International |
Topics: BITS Fair and Equitable Treatment (FET) Investor-State Dispute Settlement (ISDS) States as Parties Enforcement Arbitral Process International Arbitration System |
The theme of this conference—Arbitration in a Changing World—could not be more topical. The global pandemic turned the world upside down and continues to do so. It forced the practice of international arbitration to pivot in countless ways (as you will hear from this afternoon’s panel) and it showed us vividly how changes in the world shape and disrupt international arbitration.
But the beauty of this theme is that it is as timeless as it is dynamic. Timeless because, clearly, it is not limited to the past year. A “changing world” is the very essence of the world since the beginning of time. The world today is not the same as the world yesterday or the world tomorrow. Any time period by definition will encompass a “changing world” in some way, however minimal. And the theme is dynamic because the “changing world” and the “arbitration world” are two co-existing spheres impacting one another, taking turns leading the way to change, both requiring agility and self-reflection to assess and adjust as necessary.
My invitation to you today is to join me on a journey through modern international arbitration times and to uncover together the story of “arbitration in a changing world.” There are many different ways to approach this journey and many different moments in its history from which to choose: the 1794 Jay Treaty and its mixed commissions; the Alabama Claims arbitration between the United States and Great Britain in 1872; or the Hague Peace Conference of 1899 and the second one in 1907. Although I recognize these moments for what they are—critical antecedents to the international arbitration world that we know today—I propose to embark on this journey as of the end of World War I and to anchor these remarks around a play in three acts.
Act I is a story of innovation and foundation, of a world hungry for global peace that turned to arbitration as a peaceful means of dispute resolution and that breathed life into arbitration as a tool to further that policy goal. Act I is about laying down the various building blocks to construct the legal framework of modern international arbitration.
Act II tells a story of evolution and reaction. This is about international arbitration—now released into the world as an instrument of global peace—coming into its own, a time when arbitral practice developed and arbitral rules converged to a similar core in response to the world’s values and demands for certain features.
And Act III, well, we are in the thick of Act III. Act III is a tale of inflection and hopefully redemption. We are at a critical juncture faced with a “changing world” skeptical of global trade and international relations, and filled with populist movements pushing to make America, Brazil, Mexico, Hungary, or any number of other countries great again. It is a world drowning in economic nationalism, in protectionism, in fear of the other. The current political and economic narrative has had a tremendous impact on where we are today in international arbitration, on its legitimacy, on its potential path forward. In what shape international arbitration will surface on the other side of this Act remains to be seen, but it is early enough in Act III that we can still hope to tell a story of redemption.
* Caline Mouawad is a partner at Chaffetz Lindsey LLP in New York, with twenty years of experience in international commercial and investment arbitration. She regularly sits as arbitrator and currently serves as Vice-Chair of the Steering Committee of the ICC Commission on Arbitration and ADR.