Author:Anthony Connerty
Profession:Barrister and member of WIPO arbitration panel

    "Given the prodigious expansion of international commercial arbitration over the past half-century (the increase of trade being its fundamental cause, and the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards its primary instrument) modern practitioners may be excused for believing that we are living in an unprecedented golden age of international arbitration. They would be surprised to learn how vast international arbitral jurisprudence was in the 19 th Century. In the period between 1814 and 1898, for example, one study enumerated no less than 158 different international tribunals, including the celebrated commissions created in 1853 between Britain and the US; in 1868 between Mexico and the US; and in 1880 between France and the US....

    "The list did not include the commissions created under the famous Jay Treaty, UK/US, 8 Stat. 116, which was concluded in 1794 for the purposes, inter alia, of adjudicating claims of British creditors who were unsatisfied by their treatment at the hands of US courts, and vice versa.

    All of these bodies were created by treaty, some to resolve only one dispute, but others to deal with many cases over a period of years."

Jan Paulsson 62

Page 185

Parts II and III of the Manual dealt with supranational dispute resolution and supranational dispute resolution bodies. The types of disputes were those where one or more of the parties is likely to be a State. The dispute resolution bodies dealt exclusively either with disputes between States or with disputes where one or more of the parties is likely to be a State.

This part of the Manual will deal with international commercial disputes. It may be helpful to approach the topic by looking first at the kind of dispute resolution provisions that are likely to be found in a commercial contract. These are of vital importance, and contractual provision will normally be made at a minimum for the following:

i) Forum: in what country should the dispute resolution process take place?

ii) Choice of law: which country's law is to govern the contract? It is, of course, always open to the parties to provide for a choice of laws rather than a choice of law and to provide that disputes will be resolved by way of reference to general principles of international law or lex mercatoria.63 However, the choice of a national law is likely to be the norm.

iii) Dispute resolution process: broadly speaking, as discussed earlier, there...

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