Vicarious Hypochondria and Institutional Arbitration

Abstract

international contracts do not exist in a vacuum. Nor are arbitration clauses invariably self-executing. Parties cannot be relied upon always to agree to the choice of arbitrators, to the removal or replacement of an arbitrator, or to the extension of deadlines for rendering an award. When the parties fail to self-administer their arbitrations with respect to such organizational matters, someone else must step in. This function may be performed by a judge, and that is what typically happens unless the parties have provided otherwise. In fact, parties to an international contract generally do prefer to avoid national authorities, and rather entrust the task of managing and policing their arbitrations to a neutral institution. The question then may arise whether, and to what extent, someone should police the police. Surely there ought to be some mechanism that could neutralise the decision of an institution which is found to be a sham (perhaps not an unthinkable thought in an age of proliferating institutions amongst which there may well be some whose institutional integrity and methods of governance are dubious). And even in the respect to well-known and reputable institutions, occasions may arise where a party feels impelled to test the legitimacy of a particular administrative decision. The greater the scope for such challenges, the greater the danger of subverting the very raison d'etre of the institution. Recognising this danger, leading arbitral institutions like the International Court of Arbitration of the International Chamber of Commerce (ICC) seek to anticipate and eradicate any conceivable objections by establishing procedures seen to ensure neutrality and due process. There is, however, no reason to consider institutional practices and procedures as immune from criticism To the contrary, balanced and constructive criticism is essential to the healthy evolution of any institution. The qualifications should be well noted: balanced and …