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What Remedies can an Arbitrator Safely Award Limits to the Arbitrators’ powers and the Impact of Getting it Wrong

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Arbitration- What Remedies can an Arbitrator Safely Award Limits to the Arbitrators’ powers and the Impact of Getting it Wrong

1.0 INTRODUCTION

1.1Background Information

International commercial agreements often give rise to the commercial and relational disputes. In many instances, parties to the international agreements hail from different cultural and legal backgrounds. This necessitates creation of international arbitration in the binding contract, which helps to resolve their disputes without indulging the formalities of the parties’ respective legal systems[1]. The parties privy to the international agreements makes a decision to submit any disputes that might arise to binding resolution by either one or more arbitrators, who are selected on behalf or by the parties and applying the adjudicatory procedures mainly through inclusion of the provision for the future disputes arbitration in their contract.

Owing to the growth in international cooperation and global integration, the international contractual agreements have increased along with the need for arbitration. Arbitration has become one of the attractive dispute resolution mechanisms because of its salient features. The international arbitration bears characteristics that include having a final and binding award that is not subject to the regular courts appeal except for the recognized procedure and it is controlled by both parties[2]. The international arbitral tribunal has unique characteristics as compared to other courts that include being private, flexible and confidential and transcends the national courts boundaries.

The disputes resolutions, which fall within the international commercial contracts, are mainly carried out under the auspices of different rulemaking bodies and institutions[3]. Some of these internationally recognised institutions include the JAMS International, International Centre for Dispute Resolution (ICDR), the London Court of International Arbitration (LCIA), International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC), and International Centre for Dispute Resolution (ICDR). On addition to this, there are specialist ADR bodies that have mediation and arbitration panel and  centres such as the World Intellectual Property Organisation (WIPO). Some of these arbitral institutions have adopted the rules of the UNCITRAL, which they use in the arbitration of the international cases. As such, international institutions like the ICC plays instrumental role in constituting tribunals that arbitrate various international business or relational disputes[4].

The parties to the international commercial agreements are at liberty to choose their arbitrator and include this provision in their contract. Parties to the disputed international contracts often opt for the institutions like the ICC as the arbitrator due to its ability to resolve the dispute in a more neutral forum and the ability to make more enforceable binding decisions. The UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 serves as the principal instrument that governs the awards and enforcement of the international commercial agreements’ arbitration. This convention is ratified by more than 140 countries and was drafted under the UN auspices. The convention obligates the states, which have ratified it, to enforce and recognize the foreign arbitral awards and the international arbitration agreements that are issued in the other contracting states, subject to some exceptions[5].

Some developed countries like the UK have consciously elected not to adopt or follow the model law on the international commercial arbitrations drafted under the UNCITRAL[6]. In the United Kingdom, the Arbitration Act 1996 regulates the proceedings of the arbitrations that are within the country’s jurisdiction. Section 69 of the Arbitration Act 1996 allows either party to the dispute resolution to appeal to a court on a point of law if the parties to the disputed agreement have agreed for this cause of action to happen

[1]Stipanowich, Thomas. “Arbitration: The’New Litigation’.”University of Illinois Law Review 2010, no. 1 (2010).

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