THREE IMPORTANT PRINCIPLES OF INTERNATIONAL ARBITRATION REASSESSED

An appreciation by Elizabeth Taylor of Richmond Green Chambers and Phillip Taylor MBE, Head of Chambers, Reviews Editor, “The Barrister”, and Mediator


This book is based upon the Hersch Lauterpacht Memorial Lectures from 1987 covering international arbitration and it is published by Cambridge University Press. Now in a second edition, the three salient problems highlighted in the original work have been edited by three experts: Stephen M Schwebel, Luke Sobota and Ryan Manton.

The Preface is written by Schwebel who began his lectures some thirty years ago. There is a common thread which was explored in the first edition, namely the vitality or, in the alternative, vitiation of the international arbitral process. The editors rightly say that this thread is no less pressing a subject today than it was three decades ago.

Schwebel considers that “much progress has been made in enhancing the vitality of arbitration”. His justification is, in his words, that there has been “an explosion of inter-State, investor-State, and international commercial arbitration” although the three issues identified all those years ago in 1987 “continue to persist”.

The book has three parts to cover these points. The first part covers “the severability of the arbitration agreement”. This term means the cornerstone principle of international arbitration which is viewed as more firmly established today. However, participants do, from time to time, “call that principle into question”. The purpose is an attempt to vitiate the arbitral process by the “invocation of a (supposed) defect” in the underlying contract/treaty, with difficult issues remaining over the precise scope and limits of this principle.

The second part covers “denial of justice, and other breaches of international law by governmental negation of arbitration”. The practice highlighted here reviews governmental evasion and negation of arbitration which can take various differing forms. The question raised in this updated edition is not only whether a State’s refusal to arbitrate may constitute a denial of justice, but also the attempt to negate arbitration such as setting aside awards, might constitute “a compensable expropriation of property rights, a breach of fair and equitable treatment, or another breach of an investment treaty”.


The third and final part examines “the authority of truncated international arbitral tribunals” before proceeding to issue a final award. The jurisprudence in this area has developed significantly. The editors consider the trend towards judicial rather than diplomatic arbitration has been largely the result of a series of decisions by the Iran-United States Claims Tribunal and “the confrontation of this problem in arbitral rules”. They conclude that there is “a discernible preference among tribunals, institutions and scholars to replace the obstructionist arbitrator and obviate the need for a truncated tribunal”.

An important conclusion drawn is that the identified trends aim now to fortify international arbitration against unilateral attempts to derail the proceedings for the reasons cited in the book. It is an excellent new edition from CUP which is searching, perceptive and meticulous for the advanced student researching international arbitration.

The publication date of this hardback second edition is cited as at 1st January 2020.