The absence of the option to prefer substantive appeals from arbitral adjudication is a conspicuous systemic peculiarity of the arbitral process. While this absence has for the most part been accepted without question or resistance as being an axiomatic entailment of the arbitral process, the last two decades have witnessed an increasing amount of criticism directed at it, both from scholarship as well as the business community. The criticism has been especially emphatic, in relation to international commercial arbitrations, a sizeable proportion of which pertain to complex and high stake disputes. Moreover, there has been a concurrent increase in the demand from commercial parties for the provision of the option to subject arbitral awards to substantive review. In response to this, some major ADR Institutions such as CPR, JAMS and recently, the AAA have introduced provisions within their respective frameworks in respect of the optional substantive review of arbitral awards. These developments necessitate a reevaluation of the integrality of the systemic absence of substantive appeals to arbitration. More important is the appraisal of the conduciveness of such absence to the interests of parties desirous of arbitrating their disputes. This in turn requires a cogitation of the arguments advanced both in support of and in opposition to the institutionalization of arbitral appeals, i.e. introducing them at the State level and not only at the level of ADR Institutions, to determine two things: firstly, whether the benefits therefrom would significantly outweigh the potential drawbacks thereof, and secondly, whether the effects of such drawbacks can be offset, if not altogether eliminated. The present article answers both the abovementioned questions in the affirmative. Further, it conceptualizes a model of appellate arbitration tailored specifically to adequately address the possible drawbacks of institutionalizing arbitral appeals. This model, which I have christened the “Novel Appellate Arbitration Model” or NAAM has been structured in a manner as to facilitate meaningful error correction, while at the same time largely preserving the ‘classical advantages’ of arbitration such as finality, speed, neutrality and inexpensiveness.
Conceptualizing a Framework of Institutionalized Appellate Arbitration in International Commercial Arbitration,
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