1.Single, Centralized, One-Step Dispute Resolution Mechanism

International transactions inevitably involve parties from, and conduct in, two or more states, disputes arising from such transactions can potentially be resolved in different national courts. The same dispute can have materially different outcomes in different forums. Procedure, choice-of-law and substantive legal rules differ dramatically from one country to another, which are usually unfamiliar to, and often ill-suited for, parties form different legal traditions.?

Inconvenience, local bias and language, may make a particular forum much more favorable for one party than another. The competence and integrity of judicial officers also vary substantially among different forums. Therefore, each party tends to seek to a forum that is mot favorable to their interests, potentially resulting in lengthy and complex parallel or multiple proceedings-which produce more legal costs and uncertainty than anything else.?

International arbitration offers a single, centralized dispute resolution mechanism in one contractual forum, mitigating costs and uncertainties involved in multiplicitous litigation, protracted jurisdictional disputes, inconsistent decisions and judgment enforcement.

Such a single, centralized dispute resolution mechanism can be ensured by the enforceability of arbitration agreements provided by the New York Convention and national arbitration legislation. These instruments also minimize judicial intervention in reviewing international commercial arbitral awards and provides expedited recognition procedures an only limited grounds for denying recognition to an arbitral award. Thus, there is generally a significantly greater likelihood that an international arbitral award will be enforced abroad, and actually put the parties’ dispute to rest.?

2.Neutral, Commercially-experienced Decision-makers

Some local courts have little experience or training in resolving international transactions or disputes and can face serious difficulties in fully apprehending the business context and terms of the parties’ dispute.

In some states, basic standards of judicial integrity and independence are lacking, corruption, nepotism and personal favoritism are rife, particularly in cases against local litigants or state entities. Even national courts in some jurisdictions are able to resolve complex transnational disputes, local idiosyncrasies exist.

In most national legal traditions, judges are generally selected randomly for assignment to particular cases, regardless of their experience or aptitude in the underlying matter. Judges are ordinarily generalists, often without any specialization in complex commercial matters, such specialization is much less??in a particular type of transaction such as M&A, joint venture, oil and gas, insurance.?The efficiency and quality of the dispute resolution process can be affected.?

An individual familiar with the commercial context of the dispute, including industry customs and vocabulary is better suited to dispense justice than laypersons who might be hampered by their relative lack of business experience and understanding of trade practices.?

Parties have he most intimate knowledge of their disagreements and the greatest incentive to wisely select arbitrators with the best experience, abilities and availability for their particular dispute. Parties have the right to select the members of the arbitral tribunal, including the right to choose a sole or presiding arbitrator whose nationality is almost always different from that of the parties involved, thus reducing the risks of partiality or parochial prejudice. It’s much better than being provided a randomly-picked judge of uncertain experience, age and competence.

3.Luxurious Justice

For example, a high-value dispute in a commercial court, each party maybe only has one hour for pleadings and you can’t present witnesses and have no discovery, instead international arbitration offers ‘de luxe justice’, what you get is more extensive and thorough examination of witness testimony.

4.Finality of the Awards

The availability of appellate review of first instance judgment under national courts systems may allow either de novo re-litigation of fairly searching reconsideration of both factual and legal matters.?

The finality of the arbitral process means to be the first and only step without a tiresome ladder of appeals. There is no extensive appellate review of arbitral awards in most cases. Such review in most developed countries is narrowly confined to issues of procedural fairness, jurisdiction and public policy. Dispensing with appellate review significantly reduces both litigation costs and delays, particularly when a successful appeal that the case must be retried in the first instance court, with the possibility of yet further appeals.?

It should also be noted that a wildly eccentric, or simply wrong, arbitral decision cannot readily (if ever) be corrected. Some developed legal systems allow the parties to contract into or out of judicial appellate review of the arbitrators’ substantive decisions or select an arbitral procedure that includes appeals. To conclude international businesses generally choose speed and finality over the opportunity for appellate review.

5.Tailored Procedure

In order to provide users with the maximum degree of procedural predictability, efficiency and security, and avoid the application of domestic litigation rules, the parties and arbitrators are enabled to dispense with the technical formalities and procedures of national court proceedings and instead fashion procedures tailored to particular disputes.?

Technically-complex disputes can include specialized procedures for testing and presenting expert evidence, or “fast tract” procedures can be adopted where time is of essence, as well as the use of specialized arbitral rules in particular markets, such as the fields of maritime and salvage, commodities, insurance and reinsurance, transportation, and labor and employment dispute.?

Also, parties are typically free to choose the existence and scope of discovery or disclosure, the modes for presentation of fact and expert evidence, the length of the hearing, the timetable of the arbitration, etc.?

6.Costs

International arbitration can be an expensive process, especially in major international disputes, which can involve claims for billions of dollars, and complex factual and legal issues. Such disputes often require very substantial written submissions, factual and expert evidence, and lengthy hearings, with attendant costs. Parities are required to pay the fees of the arbitrators and, usually an arbitral institution, the logistical expenses of renting hearing rooms, travel to the arbitral situs , lodging and so on. Some expenses do not exist in national court litigation.?

Cases where in absence an excusive forum selection clause or such a clause is held unenforceable or inapplicable, there is the possibility that costs of legal representation in parallel or multiplicitous proceedings in national courts are tremendously huge.

Re-litigation of factual issues, scorched-earth discovery, disputes over service, evidentiary matters, immunity and other litigation formalities in national trial and appellate courts also cause costs.?

7.Speed

Meaningful commercial disputes often require between 18 and 36 months to reach a final award, with only limited possibilities for earlier summary dispositions. Since situations like procedural mishaps, challenges to arbitrators, diaries of busy arbitrators and counsel and litigation over jurisdictional issues in national courts can cause delay.?

However, obtaining a national court trial date and final decision may take years or longer, since judicial dockets in many countries are overburdened. appellate proceedings and the possible new trial proceedings also cause delay.?

On balance, international arbitration dose not necessarily have either dramatic speed and cost advantages or disadvantages as compared to national court proceedings.?

8. Confidentiality and Privacy

In most cases, hearing and court dockets are open to the public, competitors, press representatives and regulators, and parties are free to disclose the content of submissions and evidence to the public. These can encourage efforts at “trial by press release and may impede negotiated compromises, by hardening positions, fueling emotions, or provoking collateral disputes and damage.?

In comparison, arbitral hearings are virtually always closed to the press and public, and both submissions and awards often remain confidential, or at least private. Confidentiality obligations are usually implied into international arbitration agreements as a matter of law in many jurisdictions. Some institutional arbitration rules also expressly impose such obligations.?

However, in many jurisdictions, either there is the absence of a clear duty of such confidentiality or the existing obligations are subject to exceptions, where the awards are sometimes made public, either in enforcement actions or otherwise.?

Parties are also free to agree that their arbitral proceedings or the awards will be public. Occasions exists when commercial parties sometimes affirmatively desire that certain disputes and their outcomes be made public. For example, a company has a standard form contract, used with numerous counter-parties, it may want interpretations of the contract to become publicly-known, and binding through precedent, as widely as possible. ?

9.States and State Entities

By agreeing to international arbitration, a state or state entity ordinarily waives its sovereign immunity from enforcement of the arbitration agreement and recognition of any resulting awards; execution of the award against state assets often requires a separate and specific waiver of immunity, but awards are generally more readily enforceable against state assets than national court judgments. ?

10. conclusion?

International arbitration is much like democracy, it is nowhere close to ideal, and often fails fully to realize its objective, but it is generally a good deal better than the available alternatives.??

<禁止轉(zhuǎn)載：））