The Brave New World of Arbitration

Arbitration is often framed in discussions of its importance going forward, likely because arbitration, to many, still retains the air of a novel form of ADR. In many ways it has shaped our legal system into an entirely new world, given that it has expanded the avenues and the negotiation approaches of many contracts, whether high profile or smaller disputes. In our current age of uncertainty, the future of arbitration is also a relevant issue, as the United Kingdom can only wait to see how Brexit, and other international events such as Covid-19, will change the London arbitration platform. In light of this anxiety, it is interesting to note that the direction of many of the pieces in this collection have their focus in the extra-national context. This highlights that the view taken by Young Members of the Chartered Institute of Arbitrators is one which places arbitration on the world stage, reinforcing the idea of a brand new world of arbitration.

The opening article deals with ‘Arbitration in the Asian Century’, and notes the importance of this sector in the development of international arbitration. Beth Cubitt argues,

"With a significant increase in the number of international arbitrators in the Asia-Pacific region, and a forecast for Asia to account for almost half of the world’s economic output by 2025, the enforceability of arbitration agreements throughout the region is of increasing importance to international commerce".[1]

However, the collection as a whole focuses on regions all over the globe, including New York, Kenya, and the Middle-East, to name a few. A particularly interesting piece here was Francis Kariuki’s discussion of the potential for class action arbitration in Kenya. This piece discusses the position of class arbitration frameworks in the United States, and evaluates their applicability under Kenyan legislation. This was reminiscent of John C. Kleefeld’s work,  ‘Class Actions as Alternative Dispute Resolution’, but the novelty of the international lens added depth to this area of study.[2] Kariuki explains that, “The legal framework in Kenya does not explicitly provide for class action”, but there are consumer disputes that give rise to a right to resolution through, “any procedure that is available in law”.[3] The hypothetical aspect to this discussion, and to many of the discussions in this collection, acts to reinforce the concept of the future and evolution of arbitration. Rather than fixating on specific legislative updates, the collection works to engage the reader by presenting a discussion on the international happenings in the sphere or arbitration.

This spirit of looking to the future of arbitration is the golden thread running through this collection. The essays ensure that a consistent sense of depth shines through in the book’s focus on ‘evolution’ in the arbitration sector. For example, not only does the book deal with international advancements in arbitration, but it also deals with intangible and theoretical updates to the field. It has dedicated articles on online arbitration, on the idea that, ‘The future of arbitration is in your pocket’, and arbitration relating to arbitrating the oceans. The extensive discussion of online arbitration has become even more relevant in the recent months following the publication of the collection, given the global pandemic. The words of Vishwam Jindal ring true now more than ever, when they write that, “Every-day transactions are moving online. People hardly go to a shop and buy a product or a service”.[4] Their argument stems from this position, claiming that an Online Arbitration System or ‘OAS’ must be developed. In doing so, we could, “forever change how disputes are resolved and how businesses deal with consumer disputes. As e-commerce goes online, so should consumer dispute resolution”.[5] In this way, the authors of this collection have succeeded in their attempt to predict the future of arbitration, in many different areas of discussion. Other than the climate of remote working and online communication that has resulted from the corona virus pandemic, the collection also offers insights into broader economic disputes which may become more commonplace, such as disputes about access to water.

Elkordy, Lee, & Sippel discuss the space that arbitration is likely to fill in Middle Eastern disputes regarding waterways and sustainable water management. They begin the piece with a stark view on the reality of water tensions, looking to former UN Secretary General Boutros Bourtros-Ghali, who claimed in 1985 that, “the next war in the Middle East will be fought over water, not politics”.[6] The authors expand on this point by arguing that,

"The international perception of the scarcity of water as a source of conflict endures: water shortages are considered to have contributed to the commencement of the Syrian civil war in 2011 and the need for recognition of Palestinian water rights is regarded as a ‘central ingredient’ of the Palestinian-Israeli conflict".[7]

Here, again, the discussion centres around a lacuna in the law, and proposes a solution to a perceived eventuality. Given the turmoil that has faced our global communities recently, this future-facing and preventative approach offers insights outside of typical academic discourse.

Possibly the most interesting discussion of how arbitration may evolve comes through the book’s consideration of ‘Arbitration’s Next Frontier’, claimed here to be the farthest frontier; space. This section outlines issues of arbitration on an extra-terrestrial level, looking at considerations such as, ‘The London Convention on the Settlement of Disputes Between Nationals of Different Planets’. These space related disputes explore issues such as satellite communications arbitrations, and space-based solar power arbitrations. Julio-CĂ©sar Betancourt’s article hypothesises about,

"The future development of a new type of [international arbitration] as a means of dispute settlement within the context of long-distance trade between PEC [Planet Earth’s Civilisation] and ETCs [Extra-Terrestrial Civilisations]. It relies on the successful implementation of the New York Convention as a paradigm for a truly futuristic treaty that provides for the use of ‘interplanetary arbitration".[8]

On my initial reading, these discussions offered a light-hearted critique of hypothetical arbitration developments. Now, in August, these passages offer more, an escape from reality also. Considering arbitration on an intergalactic framework presents a unique break from the very real and concrete issues facing our world, and for that reason alone I feel confident in recommending this collection.

The collection itself is divided into seven chapters, comprising of 23 essays, written by 30 authors, relating to the future of arbitration. These chapters deal with; The Global Marketplace, The Future of Arbitration Procedure, Robotics and Technology, Confidentiality vs Transparency, Space, Third Party Funding, and Tectonic Transformations. The introduction, written by Rowan Planterose and John Tackaberry, explains the motivation behind the collection as,

"This book is a somewhat belated celebration of the Chartered Institute of Arbitrators’ first hundred years of existence. In that time the institute has successfully focused on creating training for would be and existing arbitrators which is recognised worldwide for its quality and consistency. This achievement is timely as more and more disputes, for various reasons, have come to be resolved by arbitration or by related dispute resolution mechanisms other than formal court decisions."[9]

This introduction belies much of the content of the book. Given that it has a focus rooted in the future of arbitration, it is heartening to see that the contributors have been selected from amongst the CIARB Young Members Group.

The Young Members Group is a division of the CIARB, and encourages future generations of arbitrators to become involved with the institute, and to engage with arbitration on a wider scale. CIARB explains the basis behind this group as attempting to, “bring together dispute resolution practitioners below the age of 40, and students interested in building their careers in this fast-growing and dynamic field”.[10] This group embodies the transnational spirit of the book, as this year alone they launched a branch in Zambia and the Philippines, and held an inaugural conference in Hong Kong. The structure of each essay is also formatted in such a way as to make them accessible to a wide audience, at any stage in their career. Many of the articles are divided through the use of heading and sub-paragraphs, as well as utilising introduction and conclusion sections. The language, although academic in nature, is also accessible and many of the articles engage with the subject matter in an engaging and theoretical approach.

Potential readers and future arbitrators have much to gain from this collection. Although there is certainly no paucity of scholarly work in the field of arbitration, this book represents one of the more entertaining and accessible examples on the market. The book itself is also well researched and clear in its delivery, and offers a dynamic insight into the young members who continue to pave the way forward for the evolution of arbitration. The introduction concludes by explaining the motives behind the collection, noting that, “This book looks forward to the next hundred years and bravely seeks to predict the ways in which disputes in a variety of fields, mostly new, may or will come to be resolved by arbitration. We say ‘bravely’ because predicting the future is notoriously difficult to do”.[11] Although predicting the future may not be within the authors’ ability, their discussions represent novel and interesting insights into the field of arbitration, on a worldwide scale.

[1]Beth Cubitt, Luke Carbon, and James Contos, ‘Arbitration in the Asian Century: Pro-arbitration Approaches to Arbitration Agreements in the Fastest Growing Economies in the World’ in Rowan Planterose and John Tackaberry QC (eds), A Brand New World: The Evolution and Future of Arbitration (Smith & Watts, 2019).

[2]John C. Kleefeld, ‘Class Actions as Alternative Dispute Resolution’ (York University, Osgoode Hall Law Journal, Vol. 39(4) 2001), (pp. 817-841).

[3]Francis Kariuki, ‘Class Action Arbitrations: Is the future of Arbitration in Consumer Disputes in Kenya?’ in Rowan Planterose and John Tackaberry QC (eds), A Brand New World: The Evolution and Future of Arbitration (Smith & Watts, 2019), pp.49-51.

[4]Vishwam Jindal, ‘The Future of Arbitration is in Your Pocket’, in Rowan Planterose and John Tackaberry QC (eds), A Brand New World: The Evolution and Future of Arbitration (Smith & Watts, 2019), p.132.

[5]Ibid. p.133.

[6]Ahmed Elkordy, Amanda Lee, & Harald Sippel, ‘Waterway Disputes in the Middle East: Finding a workable dispute resolution mechanism for the next century’, in Rowan Planterose and John Tackaberry QC (eds), A Brand New World: The Evolution and Future of Arbitration (Smith & Watts, 2019), p.243.

[7]Ibid. p.243.

[8]Julio-CĂ©sar Betancourt, ‘Interplanetary Arbitration: The London Convention on the Settlement of Disputes Between Nationals of Different Planets’ in Rowan Planterose and John Tackaberry QC (eds), A Brand New World: The Evolution and Future of Arbitration (Smith & Watts, 2019).

[9]Rowan Planterose and John Tackaberry QC (eds), A Brand New World: The Evolution and Future of Arbitration, Introduction, (Smith & Watts, 2019).

[10]Chartered Institute of Arbitrators website: (https://www.ciarb.org/membership/ymg/) (Last accessed 20/11/2019).

[11]Rowan Planterose and John Tackaberry QC (eds), A Brand New World: The Evolution and Future of Arbitration, Introduction, (Smith & Watts, 2019).