Legislating, Decision-Making, Practice and Education
Edited by Mary Hiscock and William van Caenegem
Chapter 17: Internationalisation of Decision-Making – Arbitration
17. Internationalisation of decisionmaking – arbitration Laurence Boo* INTRODUCTION International arbitration has developed into a distinct modality for dispute resolution due primarily to its international enforceability under the NYC on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (NYC).1 With its growth there arise new principles, rules and processes that directly impact or influence decision-making, particularly in international commercial transactions and cross-border direct investments. Such influences can be seen in terms of their impact on the substantive rules as well as in its processes. INTERNATIONAL CONVENTIONS With more than 140 states having ratified the NYC, its international acceptability and influence are unrivalled. Earlier conventions such as the 1923 Geneva Protocol on Arbitration Clauses (Geneva Protocol) and the 1927 Geneva Convention on the Execution of Foreign Awards (1927 Geneva Convention) tended only to have regional following. Post-World War II witnessed the need for reconstruction and capital intensive investments leading to the need to encourage and protect investors from developed nations preparing to invest in developing states by removing ‘major impediments to the free international flows of private investment posed by non-commercial risks’. The Convention on the Settlement of Investment Disputes between States and Nationals of States 1965 (the ‘ICSID Convention’) gave birth to a supranational regime, delinked from national laws and judicial system to serve as an ‘impartial international forum providing facilities for the resolution of legal disputes’ arising from such investment disputes. As at 30 June 2008, there were 155 signatory States to the ICSID Convention. Despite its very...
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