W(h)ither International Commercial Arbitration?: The Goff Lecture 2007

Abstract

IT IS a great honour to deliver this Fourteenth Goff Lecture in Hong Kong, because of both its association with Lord Goff of Chieveley1 and the illustrious previous speakers in this forum. I would like to take this opportunity to offer some reflections on the state of international commercial arbitration today and certain challenges it faces for the future, and I think that the now significant corpus of existing Goff Lectures provides an eminently suitable starting point for this exercise. Indeed, taking the year in which these lectures were inaugurated by Lord Goff himself, 1990, as a reference point, it is quite clear just how the field has changed, both quantitatively and qualitatively. In 1990, the Hong Kong International Arbitration Centre (HKIAC) had been established for five years and its docket consisted of 54 cases, whereas by 2005 that docket encompassed 281 cases.2 Similarly, the number of CIETAC arbitrations increased from 238 in 1990 to 979 in 2005,3 while the Singapore International Arbitration Centre was established only in 1991.4 This Far Eastern ‘boom’ in arbitration has been part of a global phenomenon, with the International Chamber of Commerce (ICC), for example, receiving 561 new requests for arbitration in 2004, with a total of 1,110 cases pending, as compared to 365 new requests in 1990, when there were 765 cases pending.5 On a qualitative level, it is striking that as of 1990, fewer than five cases had been brought under bilateral, regional and multilateral investment treaties containing arbitration clauses, whereas by 2004, 160 such cases had been brought, and their impact is now being felt by international commercial arbitration practitioners in a number of ways, some of which I will discuss a bit later.6