35 The CIArb Australia News 2019
Paula Hodges QC2 View Profile
The Continuing Evolution Of International Commercial Arbitration – Is It Still Fit For Purpose?1 Introduction The idea of resolving disputes by arbitration has a long, rich history. Even before the term "arbitration" was being used, tribunals (often consisting of elders, respected academics, or trading professionals) were tasked with resolving various kinds of disputes faced by members of their communities. Most commonly, these would be religious or personal disputes, but they could be commercial if the society was based on a system of private property ownership. These tribunals, like those of today, produced a ruling that was binding upon the parties. The binding nature of the ruling either flowed from the agreement of the parties, or as a result of social convention. Indeed, Catherine Holmes (the Chief Justice
1. This article is based on a speech of the same
of Queensland) has explained how arbitration bears similarities to dispute resolution processes within the indigenous aboriginal culture in Australia.3 These early arbitral proceedings were what we would now consider to be ad-hoc proceedings – they were devised and developed by (and for) the parties, who chose a tribunal consisting of those best suited to resolve the issues in dispute. Over time - as the merits of arbitration become more widely recognised – there followed the development of more established systems for resolving disputes, with the disputes becoming increasingly commercial in nature. A pivotal turning point in the evolution of international arbitration
Professional Support Consultant at Herbert
occurred with the advent of the New York Convention in 1958.4 The Convention proposed arbitration as the means to resolve international disputes in a bid to facilitate global trade, legal certainty, and ease of enforcement of awards rendered in other jurisdictions. Whilst it is unlikely that those involved in the drafting of the New York Convention truly anticipated the level of growth in world trade that has taken place since the 1960s onwards, there has been an even greater need for a legal process that can operate at a truly international level as the global economy has transcended international borders. As of today, 80% of the world's countries have signed the New York Convention, totalling 161 countries and counting.5
4. Convention on the Recognition and
title delivered on 19th November 2019 at the
Smith Freehills LLP, for her assistance in the
Enforcement of Foreign Arbitral Awards
CIArb Australia Annual Lecture, in Brisbane,
preparation of this article.
(adopted 10 June 1958, entered into force 7
Australia. 2. President of the LCIA and Head of Global Arbitration, Herbert Smith Freehills LLP. The author would like to thank Vanessa Naish,
3. Catherine Holmes, Welcome Address, CIArb Australia Annual Lecture, Brisbane, Australia, 19th November 2019
June 1959) 330 UNTS 3 5. UNTC Convention on the Recognition and Enforcement of Foreign Arbitral Awards
