ABSTRACT
Survey and other evidence typically identify many advantages of international commercial arbitration (ICA) over cross-border litigation. This explains why ICA is overwhelmingly the most preferred dispute resolution mechanism included in international commercial contracts (and even investment treaties). However, ICA faces growing challenges. The comparative advantage of enforceability of arbitration agreements and awards is threatened by new Hague Conventions for enforcement of judgments, and by the Singapore Convention for enforcing mediated settlements, although these instruments still have few ratifications. Neutrality and related expertise of arbitrators encounter problems such as burgeoning challenges to arbitrators and the emergence of international commercial courts, notably in Singapore. Confidentiality in arbitration is not uniform and anyway can increase unpredictability, as well as making it harder for users to assess if arbitrators and lawyers provide good value for their services. Limited discovery of documentary evidence and other flexibility in arbitration procedures is offset by the proliferation and hardening of ‘soft law’ instruments and standardised practices. The lack of appeal for error of law promises finality in awards but arbitration overall is not much quicker, cheaper or more amicable than litigation of commercial disputes. This presentation elaborates such promises and pitfalls of ICA nowadays. It considers what could be done to improve the environment for ICA generally, and in the context of countries like Japan and Australia that have struggled to attract ICA cases-despite the growth across Asia. A major focus is on measures to address proliferating costs and delays.
Nottage, Luke R, The Prospects and Challenges for International Commercial Arbitration (July 1, 2025), Japan Commercial Arbitration Journal, volume 6, pp 35-52.
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