If both domestic and international trade is strong, this translates into faster growth, higher living standards and new opportunities for the citizens of the trading nations. The division of these benefits is not always equal so, to increase the spread of these opportunities world wide, international organisations and bodies, sovereign states and representative trading bodies negotiate what should be fair and harmonised rules on commercial transactions and for the resolution of disputes as and when they arise.
Conciliation and Arbitration are regulated at the Public International Law level through multilateral treaties and conventions such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the Washington Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, regional grouping treaties, and bilateral agreements between individual states. The World Trade Organisation (WTO) replaced the General Agreement on Tariffs and Trade (GATT) in 1995. Its responsibility is to regulate trade between nation states by negotiating and implementing new trade agreements and resolving disputes through the Dispute Settlement Body. This Body applies a graduated system which moves from preliminary consultation and mediation between the nation states as parties, through to panel hearings and a final consensus on whether there has been a breach of WTO Rules. The procedures are, by definition, carefully modulated because sovereign states can be reluctant to accept criticisms of and limitations to their powers.
There are also a number of International Organisations that support and promote ADR between legal entities and individuals in general, and both Conciliation and Arbitration in particular (nation states can also become involved as parties where their commercial arms have engaged in commercial activities). The most important of these is the United Nations Commission on International Trade Law (UNCITRAL) which is the primary body of the United Nations system responsible for international trade law and commercial law reform. It was established by the UN General Assembly in 1966 with the aim of reducing obstacles to international trade. It now focuses on the modernisation and harmonisation of rules on international business. It works to agree model laws and sets of rules that can be accepted and adopted by states around the world. It is also working alongside organisations such as UNIDROIT and the Hague Conference on Private International Law to produce a uniform commercial law.
The Hague Conference was formed in 1893 to “work for the progressive unification of the rules of Private International Law” (also known as Conflict of Laws). To that end, it has produced and implemented a number of multilateral conventions to harmonise the principles and practice of Conflict of Laws across all major areas of commercial activity. The International Institute for the Unification of Private Law, also known as UNIDROIT, was created in 1926 under the auspices of the League of Nations as an independent intergovernmental organisation whose purpose is also to modernise, harmonise and co-ordinate Conflict of Laws as it applies to International Commercial Law.
The International Chamber of Commerce (ICC) holds itself out as the voice of world business, championing the global economy as a force for economic growth, job creation and prosperity. It recognises the increasing interdependence between economies as globalisation accelerates, and understands that government decisions now have more potential to disrupt patterns of international trade. The ICC therefore sees its role as an assertive advocate for the views of international business, promoting dialogue with governments around the world.
It is also responsible for the administration of the International Court of Arbitration which organises and supervises international arbitration proceedings. The court does not itself resolve disputes. That is the responsibility of the independent arbitrators. The Court does, however, make every effort to ensure that the resulting award is sufficiently consistent with the relevant domestic laws so that the award will be enforceable in the relevant national courts if the need arises. In practice, the parties usually comply.
The London Court of International Arbitration (LCIA) is one of the longest-established international institutions for commercial dispute resolution. It provides international arbitration wherever the parties require it and regardless of the systems of law involved. The use of “London” in the name is a reference to location of the administrative headquarters only. The LCIA is also active in Mediation and other forms of ADR. It has devised its own rules and procedures, which are frequently adopted in ad hoc arbitrations even where the LCIA itself is not involved. The Arbitration Court itself appoints tribunals, determines challenges to arbitrators, and controls costs.
Relevant to Australia is the emergence of the Singapore International Arbitration Centre (SIAC) which, after 16 years of pioneering development, has grown into a world-class arbitration institution in Asia.