Author: Diane Okoko
Introduction
International arbitration and dispute resolution is a unique area of practice. The expansion and globalization of cross-border investments and trade has led to increased and ever more complex relationships between businesses, investors and States. It is an area that is constantly growing with an unsaturated market. Embarking on a career in International Arbitration promises to be rewarding.
To begin this journey, it is essential to understand all there is about international arbitration and what a career in international arbitration offers. This paper seeks create a rudimentary format to building a career in international arbitration.
In the course of this work, we would discuss:
- Arbitration
- International Arbitration
- Who is an Arbitrator?
- Training and Accreditation of an Arbitrator
- Areas of specialization in International Arbitration
- Arbitral Institutions and Associations
Arbitration
Arbitration has been the most preferred means of resolving commercial disputes. It can be defined simply as a method of alternative dispute resolution where parties appoint a person known as an arbitrator or several persons know as an arbitral tribunal to settle their dispute and deliver a binding decision known as an award.
In arbitration the parties submit a dispute to an appointed decision-maker (arbitrator), or panel of arbitrators (the tribunal). This is typically done by providing an arbitration clause in their contract known as the arbitration agreement. The agreement usually covers the number of arbitrators, the seat of the arbitration, and the procedural rules that will govern the arbitration.
Transacting parties often opt for this mode because of its characteristics. Arbitration is less adversarial, it therefore fosters business relationship. It is flexible and time conservative. It affords the parties privacy and confidentiality and gives the parties opportunity to exercise their choice. Parties are able to choose the seat of the arbitration, the applicable rules, the neutral arbitrator or arbitral body and the qualifications of the arbitrator.
The decision (award) given by the arbitrator is final and binding on the parties. The award enjoys enforceability in several jurisdictions as a result of the New York Convention, 1958 applicable in over 150 States.
Arbitration procedure
The arbitral procedure is compared to litigation, more flexible and straight forward. In summary, the parties on appointing an arbitrator present their statements and evidence before the arbitrator. The arbitrator makes evaluation of the evidence and delivers a binding award. Sections 14 to 23 of the Arbitration and Conciliation Act, 2004 provides for the conduct of the arbitral process in Nigeria.
International Arbitration
The rapid expansion of international commerce and international arbitration along with it in the last half century has exerted a clear evolutionary pressure on the arbitral process. International arbitration has developed to determine disputes arising between parties from different and diverse legal, cultural and economic system.
Its participants comprise of governments, state owned entities multinational and national corporations and individuals doing business, all of which importantly, are involved in international commercial transactions. International arbitration is therefore arbitration across borders.
Several States arbitration laws do not suite the needs of the transacting parties hence the development of International Arbitration to provide parties engaged in international transaction with a neutral forum for dispute resolution. The purpose of international arbitration is therefore to provide businesses engaged in international transactions with a neutral forum for dispute resolution.
The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (New York Convention) was the first step into providing a uniform international arbitration forum. It has since been signed and ratified by over 150 states. United Nations Commission on International Trade Law Arbitration Rules as revised 2010 also provides applicable rules for international arbitration.
Arbitrator/ International Arbitrator
An Arbitrator is an expert in dispute resolution. An arbitrator has a formal training or license to practice arbitration and usually belongs to a formal body or association of arbitrators. He is chosen by parties who have a dispute to settle to deliver a decision that will be binding on the parties. An arbitrator is often chosen, in part, because of their expertise in the subject matter, lex arbitri or the substantive law of the contract (lex causae).
An International arbitrator is an arbitrator that practices arbitration across borders. They usually belong to an internationally recognized body. An international arbitrator is specialist his field of practice, they are equipped with both domestic and international arbitration rules and even speak multiple languages. They resolve issues ranging from diplomacy to issues involving sums larger than annual budget of some small nations.
An arbitrator can practice solely or on a tribunal, depends on the choice of the parties.
What is the role of the Arbitrator?
Their role is similar to that of a judge, in that he organizes and controls the arbitration. An arbitrator or arbitral tribunal reviews testimony and evidence to deliver a decision. However, they will also encourage collaborative communication, as opposed to an adversarial approach. An arbitrator must be independent and impartial. If he is a member of an arbitration organization he is usually bound by the rules of that organization.
Any decision made by an arbitrator in the course of arbitration proceedings is legally binding in the same way as a judgment would be. He is expected to be impartial and to deliver a sound award.
Training and Accreditation of an Arbitrator
Arbitrators are expected to be experts in the field of dispute resolution. There is no expertise without training and some sort of certification to prove. Arbitrators are expected to be experts in the particular field where they operate and possess excellent arbitration skills. It is not mandatory that they are legal experts. However, possession of legal experience is useful, as is industry knowledge if the dispute involves technical matters.
An arbitrator can either train with an arbitration institution and or be trained in a formal university education. Trainings could be done in seminars, conferences or coursework. Some institutions organize trainings online to make acquiring arbitration skills available and flexible. They are usually trained to possess excellent soft skills to aid them in dispute resolution and on how to conduct the arbitral process.
Arbitrators trained by arbitration institutions are accredited by the institution and regarded as members of the institution. They are also bound by the rules of the institution.
Specialization
There are no limitations to areas of practice in international arbitration. It is safe to say that international arbitration can be practiced in any area where dispute can occur. Some areas of specialization in international arbitration industry include:
- Construction
- Commodities
- Maritime
- Insurance
- Investment
- Entertainment
- Aviation
- Information Technology
- Sport
- Banking
Arbitral Institutions and Associations
An arbitration institution is a body of skilled professionals who are trained and accredited arbitrators. They are usually appointed by parties in their arbitral agreement to oversee disputes that may arise between them. They can either appoint a sole arbitrator or a tribunal based on the choices of the parties. They also train individual who desire to further a career in arbitration.
There are several arbitration institutions in Nigeria some of which include:
- The Nigerian Institute of Chartered Arbitrators
- Lagos Court of Arbitration
- Chartered Institute of Arbitrators (Nigeria branch)
- Lagos Chamber of Commerce International Arbitration Centre
- International Centre for Arbitration and ADR (Lagos)
- Regional Centre for International Arbitration (Lagos)
- Institute of Chartered Mediators and Conciliators
Foreign Arbitration Institutions include;
- International Court of Arbitration of the International Chamber of Commerce
- London Court of International Arbitration
- Hong Kong International Centre of Arbitration
- International Centre for Dispute Resolution of the American Arbitration Association
- Singapore International Arbitration Centre
There are also specialist arbitration intuitions such as;
- International Centre for Settlements of Investments Disputes
- World Intellectual Property Organization Arbitration and Mediation Centre
Conclusion
International arbitration is a vast field of opportunity for anyone who desires to build a career in it. With its growing popularity in international commerce, it is definitely a strategic field for one to build a career. Anyone fostering a career in international arbitration should not undermine the importance of training and belonging to an arbitration institution. Through trainings and specialization in a particular field of international arbitration, a career promises to be rewarding.
