Arbitration Through the Ages

Arbitration Through the Ages Presented By: Prof. Florian Grisel and Dr. Mikaël Schinazi Date: 27 February 2024 Agenda - - I. HISTORICAL APPROACHES • A. ARBITRATION WITHIN LOCAL TRADE ASSOCIATIONS • B. THE ORIGINS OF THE ICC AND ITS COURT OF ARBITRATION • C. THE DEVELOPMENT OF THE ICC ARBITRATION SYSTEM II. SOCIOLOGICAL APPROACHES • A. ICA AS A COMPETITIVE FIELD • B. PIERRE BOURDIEU'S FIELD THEORY AND ITS LIMITS • C. ICA AS A COOPERATIVE FIELD • D. SOCIAL REPRODUCTION IN ICA I. HISTORICAL APPROACHES Arbitration Within Local Trade Associations - Examples of London and Liverpool commodities markets Commodity Grain Coffee Rubber Vegetable oils Copper, tin, lead, zinc Grain Trade association London London Corn Trade Association Coffee Trade Association Rubber Association of London Oil Brokers' Association London Metal Exchange Liverpool Liverpool Corn Trade Association Venue Baltic Exchange As above As above Baltic Exchange Own premises Own premises Cotton - Liverpool Cotton Brokers' Own premises Association Source: Ross Cranston, "Law Through Practice London and Liverpool Commodity Markets c. 1820-1975," Society and Economy Working Papers (London: LSE Law, 2007), p. 3, see also, Ross Cranston, Making Commercial Law Through Practice 18301970 (Cambridge University Press, 2021), chapter 2. The Origins Of The ICC And Its Court Of Arbitration The birth of the International Chamber of Commerce - Three main dates: • 1919: business leaders from the five Allied countries gather in Atlantic City, New Jersey (USA).  The "Merchants of Peace" o ICC's founders acted on their conviction that the private sector is best qualified to set global standards for business. o They called themselves "The merchants of peace." • 1920: the ICC is inaugurated.  Etienne Clémentel (1864-1936) (First President of ICC and ICC Court of Arbitration) • 1923: the Court of Arbitration of the ICC is launched The Development Of The ICC Arbitration System - Changing trends in case characteristics • Subject matter of disputes submitted to ICC arbitration in the 1920s  felt-carding machines (ICC Case No. 6)  rubber (ICC Case No. 50)  creosote oil (ICC Cases No. 56 and 67)  kaolin (ICC Case No. 91)  superheaters (ICC Case No. 111)  tobacco (ICC Case No. 115)  building materials (ICC Case No. 225)  steel-cutting machines (ICC Case No. 247)  mother-of-pearl (ICC Case No. 265)  railroad materials (ICC Case No. 1929) • Subject matter of disputes submitted to ICC arbitration in the 1930s  Far more complex legal and factual issues than cases in the 1920s  publication of articles in a sports magazine (ICC Cases Nos. 380, 381, 382, 383, 387, and 390)  exclusive license to use a water-softening agent (ICC Case No. 540)  contracting parties' right to sell products in the territory of the Saar Basin following the Treaty of Versailles (ICC Case No. 546)  agency agreements (ICC Case No. 556)  licensing agreements (ICC Case No. 588)  tax deductions on British patent royalties (ICC Case No. 144) - - The evolution of the ICC Rules of Arbitration • 1922 • 1927 • amendments in 1931 • 1933 • 1935 • 1939 • 1947 • new versions in 1955 • 1975 • 1988 • 1998 • 2012 • 2017 • 2021 The ICC Court's scrutiny of draft awards • The Court's scrutiny of draft awards is an example of a rule developed over time to improve the efficiency of the ICC's arbitration system. • The 1922 Rules were silent on the matter. • The idea that draft awards should be scrutinized can be found in the 1923 Explanatory Commentary. • In Court's scrutiny of draft awards extended only to the form, not the substance, of awards. • By the 1930s, the principle of scrutiny of draft awards had become firmly established as part of the practice of the ICC Court. - The ICC's key role in drafting the 1958 New York Convention • In March 1953, the ICC adopted a "Preliminary Draft Convention" on the enforcement of international arbitral awards. • The ICC Draft Convention adopted a modern approach:  It did not include the requirement that an award first become final in the country of the seat of the arbitration in order to be enforced elsewhere. The draft Convention effectively eliminated the "double exequatur requirement of the Geneva Convention.  It made far fewer references to national law, giving increased importance to the parties' intention and to the arbitral process being detached from national laws. II. SOCIOLOGICAL APPROACHES - A. ICA AS A COMPETITIVE FIELD - B. PIERRE BOURDIEU'S FIELD THEORY AND ITS LIMITS - C. ICA AS A COOPERATIVE FIELD - D. SOCIAL REPRODUCTION IN ICA Bourdieu's Theory Of The Social World - Social field - Habitus - Symbolic capital and violence