Returning to the origins of multilevel regulation : the role of historical adr practices

Published online: 4 May 2023The article engages with the recent studies on multilevel regulation. The starting point for the argument is that contemporary multilevel regulation—as most other studies of (postnational) rulemaking—is limited in its analysis. The limitation concerns its monocentric approach that, in turn, deepens the social illegitimacy of contemporary multilevel regulation. The monocentric approach means that the study of multilevel regulation originates in the discussions on the foundation of modern States instead of returning to the origins of rules before the nation State was even created, which is where the actual social capital underlying (contemporary) rules can be found, or so I wish to argue. My aim in this paper is to reframe the debate. I argue that we have an enormous reservoir of history, practices, and ideas ready to help us think through contemporary (social) legitimacy problems in multilevel regulation: namely all those practices which preceded the capture of law by the modern State system, such as historical alternative dispute resolution (ADR) practices

Diversity in arbitration: the lack of racial diversity in international arbitral tribunals

Calls for greater diversity, especially in relation to the appointment of arbitrators, have been prevalent for some time in the international arbitration community, followed by several initiatives being set up to address the issue. While the primary focus of the diversity debate has been on gender, there have also been calls to expand and diversify the profile of the arbitrator pool to include more non-Western and non-White arbitrators. For several years, scholars and practitioners have argued for countless benefits of increased racial diversity, such as an increased acceptability and legitimacy of the arbitration process. There is a consensus that in a deliberative process like ADR, practitioners should reflect their claimants’ demographics. The existence of diverse panels helps further the aims of meticulous and accurate fact-finding approaches. Similarly, they argue that the lack of racial diversity may directly and negatively affect the quality of arbitration awards. This blog post will focus on the lack of diversity of African arbitrators appointed to resolve international arbitration proceedings, as well as initiatives that are being set up to address such issues. The focus on African ethnicity is given for two reasons: 1) African countries are no strangers to arbitration. Nearly 100 arbitral institutions exist across Africa. 2) There has been an increase of arbitration proceedings emanating from African regions, while there has been a minimal growth in the ethnic diversity of arbitrators appointed to resolve these disputes. This article was originally published on https://commercialarbitrationineurope.wordpress.com/2021/06/29/diversity-in-arbitration-the-lack-of-racial-diversity-in-international-arbitral-tribunals

The liability of arbitral institutions : legitimacy challenges and functional responses

This book offers an innovative approach to the topic of liability in international arbitration, a controversial topic that has heretofore not been fully explored in the scholarship. Arbitral institutions have recently emerged as powerful actors with new functions in and outside arbitration processes. The author proposes to shift the debate on liability from arbitrators to the arbitral institutions. The book re-evaluates the orthodox understanding of the status, functions, and responsibility of arbitral institutions and is recommended for arbitration scholars, practitioners, and students. It is argued that the current regulations regarding liability are inadequate given both the contractual obligations and the emerging public function of arbitral institutions and that institutional arbitral liability is therefore necessary. The book also links the contemporary functions of arbitral institutions to recent debates regarding legitimacy challenges in international commercial arbitration. Responding to these challenges, a model of institutional contractual liability is proposed that invites arbitral institutions to proactively regulate the scope of their liability.-- Provided by Publisher.-- Introduction -- Status and Functions of Modern Arbitral Institutions -- The Triad of Modern Functions of Arbitral Institutions – In Search of the Sources and Scope of Institutional Arbitral Liability -- Do Not Sue Us! On How the Current Institutional Regulations of Liability Do Not Respond to the Triad of Institutional Functions -- The Legal Dimension of Institutional Arbitration: On the Current National Regulations and “Visions” of Institutional Arbitral Liability -- Cutting the Gordian Knot: Proposals for the Institutional Reform of Arbitral Liability -- The Level and Scope of the Public Regulations on Institutional Arbitral Liability: Proposals -- Conclusion. Risk Acceptance Versus Risk Avoidance: On Why Arbitral Institutions Should Eventually Reform their LiabilityPublished version of EUI PhD thesis, 201

The state of research on arbitration and EU law : Quo vadis European arbitration?

The goal of this article is to provide a systematic literature review of studies on arbitration in recent decades. The major focus is on emerging developments in arbitration and EU law. The review will thus map the research on these developments and summarize its major findings to provide a better understanding of new trends in the scholarly literature on arbitration and EU law, and to identify research gaps to be addressed in the future. Just as almost 20 years ago Pieter Sanders addressed the then emerging problems of arbitration practice and posed a question: "Quo Vadis Arbitration?" this paper asks the question "Quo Vadis European Arbitration"? Hence, it aims at depicting the current and future direction of EU law and arbitration by proposing a common platform for discussion on these two distinct yet increasingly overlapping fields

ADR in B2B disputes in the EU telecommunications sector : where does the EU stand and what does the EU stand for?

This paper analyses the application of alternative dispute resolution (ADR) mechanisms to disputes arising between telecommunications undertakings under the EU Telecommunications Package, as revised on November 4, 2009. The new rules aimed at facilitating the development of the EU common telecommunications market, and were designed to increase the powers of national regulatory authorities (NRAs) across the Member States in the imposition of regulatory obligations in a coherent manner. One key reform concerned the centralisation of the dispute resolution functions of NRAs. Within the new dispute resolution prerogatives, NRAs were empowered with a right to determine their appropriateness for handling regulatory disputes between telecommunications undertakings or to decline their jurisdiction should other ADR means be available and more suitable for the resolution of regulatory disputes. This paper examines the mere development of ADR in telecommunications disputes in the UK, Ireland and Poland following the revision of the EU Telecommunications Package. Moreover, the paper analyses the effectiveness of the recent European Union (EU) policy on promoting ADR within the EU legal order against the background of the fragmented national approaches to ADR, as examined in the selected jurisdictions

The three pillars of institutional arbitral liability : the weaknesses of present regulations and proposals for further reform

Defence date: 7 October 2013Examining Board: Professor Fabrizio Cafaggi, EUI (Supervisor) Professor Hans Micklitz, EUI Professor Sandrine Clavel, University of Versailles Saint-Quentin-en-Yvelines (External Supervisor) Dr. Emmanuel Jolivet, International Chamber of Commerce & International Court of Arbitration, Paris.This thesis analyses the issue of institutional arbitral liability from an interdisciplinary perspective, incorporating the legal, social, and economic dimensions of institutional functions. The point of departure for the main analysis is the assumption that the current institutional exclusion of liability clauses do not respond well to the multifaceted objectives underlying the performance of institutional arbitration actors (both arbitral institutions and institutional arbitrators). In view of this, the thesis identifies the optimal scope of institutional arbitral liability. It is hypothesised that the legal approach to institutional arbitral liability (focusing on the explanation of the contractual bonds and institutional activity through the lenses of various contract law theories) alone is insufficient to accommodate all aspects of institutional performance. It is argued that the contractual obligations of institutional arbitration actors should be analysed in view of the social and economic goals of institutional regimes. Social goals refer to the questions of authority and legitimacy of institutional arbitration (whether in its internal or external aspects), while economic aims refer to the traditional commercial function that arbitral institutions assume in the so-called "market" for arbitration services. Therefore, the thesis suggests that institutional arbitral liability should be based on the three pillars of institutional functions, namely: the legal, social and economic aspects of institutional regimes. The thesis also identifies the emerging public function of institutional arbitration vis-à-vis its traditional commercial function that for long tried to reduce institutional activity to a pure provision of arbitration services. The public function implies the growing private regulatory powers of arbitral institutions in and outside arbitration processes, as well as the increasingly exclusive institutional prerogatives in the administration of publicly oriented arbitrations. The public function supports the proposals for institutional arbitral liability provided in this thesis, as it requires certain public oversight of the fairness and accountability of the contemporary institutional arbitration processes

The application of arbitration in transnational private regulation: an analytical framework and recommendations for future research

This paper investigates the prospective application of arbitration by Transnational Private Regulation (TPR). It builds on the study of TPR developed by Fabrizio Cafaggi et al. TPR addresses the ever-increasing transfer of regulatory power from national to global levels, and from public to private regulators. TPR entails private regulatory co-operation be-yond the jurisdictional boundaries of States through voluntary standards. The regimes of TPR are built by a variety of actors, such as companies, NGOs, independent experts, and epistemic communities. Examples of TPR can be found in food safety, forestry management, trade, and derivatives, among other fields. More specifically, they concern private actors engaging in transnational coordination of standard setting such as the Forest Stewardship Council (FSC) that was developed to foster responsible management of the world’s forests. There are four main characteristics of TPR: legitimacy, quality, effectiveness, and enforcement. I will describe those four characteristics in brief here. First, the legitimacy of TPR is built around consent through voluntary entry, participation, and exit of regulated entities. Important to this contribution is that the legitimacy of TPR goes beyond its legal dimension, measured by purely legal standards. Hence, the legitimacy of TPR is largely determined by standards developed by social and economic institutions relevant to specific TPR regimes. The role of those institutions in standard settings is higher in private TPR regimes than private-public TPR regimes, where some forms of compliance are mandatory. Second, the quality of TPR corresponds to the ex ante and ex post evaluation cycle of regulatory processes. It is also linked with the transparency of TPR. Third, the effectiveness of TPR is measured according to the extent to which the objectives of TPR (or selected TPR regimes) are met. And finally, enforcement of TPRis understood as ‘ensuring compliance with commitments’. Enforcement of TPR can take place through courts, administrative agencies, and private dispute resolution—including the arbitration at the core of this contribution. Cafaggi’s study identified rather selective use of arbitration in TPR, but also recommended changes to make arbitration law more adaptable to TPR. Furthermore, the study recommended that more specialized dispute resolution institutions are created to exclusively serve TPR. Against this background, I shift the main focus of analysis from TPR to arbitration. Whereas Cafaggi argued that arbitration may be suitable for TPR as a means of private enforcement, in this paper I go even further, arguing that arbitration as a means of informal, out-of-court dispute resolution is well suited to strengthen the normativity of TPR. This is so because private arbitration actors (including, inter alia, arbitrators and arbitral institutions) are already equipped with the tools necessary to facilitate cross-border TPR, which is done through informal standards and procedures with origins in the communitarian values and reputational mechanisms used by different communities before the development of modern States. The roots of most private justice regimes—including arbitration—are informed by communitarian values such as collaboration, participation, and personal trust. Those values, together with other core characteristics of arbitration correspond to all core characteristics of TPR, making both systems comparable and complementary. The analytical framework incorporated in this paper follows the four core characteristics of TPR. Hence, the paper is organized into five sections. The first section contains the introduction. In the second section, I analyze the legitimacy of arbitration vis-à-vis the legitimacy of TPR. In the third section, I investigate the accountability of arbitration as a means of quality signaling vis-à-vis TPR. In the fourth section, I focus on the remedies available to arbitrators in a view of TPR’s effectiveness. Finally, in the fifth section, I analyze enforcement through arbitration and its impact on the exclusiveness versus complementarity of TPR regimes. Conclusions follow, including recommendations for future research. Part of topic "The blurring distinction between public and private in international dispute resolution

Arbitration in Southern Europe: Insights from a Large-Scale Empirical Study

When the Legal Affairs Committee of the European Parliament commissioned the authors of this article, along with other members of the Brunel Centre for the Study of Arbitration and Cross-Border Investment, to undertake a study of the “Legal Instruments and Practice of Arbitration across the EU”, it was decided that a central platform of that Study should be large-scale empirical research dedicated to identifying the realities of arbitral practice in each of the States in the European Union plus Switzerland. This empirical research took the form of a Survey of arbitration practitioners across the European Union and Switzerland, consisting of 95 questions, and addressing such diverse topics as the backgrounds of arbitration practitioners, the procedures used in the arbitrations in which respondents had been involved, the considerations important for recommending arbitration and for selecting an arbitrator, and environmental questions such as the attitude of judges towards arbitration and the desirability of action by the European Union to harmonize arbitration law across the European Union. The present article reports on and discusses the results of this Survey with respect to six States collectively described here as constituting “Southern Europe”: Cyprus, Greece, Italy, Malta, Portugal and Spain. While these States share an obvious geographic proximity, it is important to emphasize that the decision to collect them into a single article was made not just on this geographic basis, but also due to certain cultural and legal elements shared by these States that might be thought to impact on local arbitral practice. The goal of this article is not merely to report the results of the Survey, but is instead to use the results of the Survey, interpreted in the light of the additional information developed in the course of the Study, to generate a picture of arbitration in each of these States. In this way the article seeks to deviate from the norm of concentration upon elite international arbitration practice, in order to provide important new information on the realities of and variations that exist in the practice of arbitration across Southern Europe. Recognizing and appreciating this reality of diversity provides an important foundation for enriching the academic study of arbitration beyond this single article and these six States, moving such study away from an exclusive focus on elite arbitral practice, towards an appreciation of the significant variations that do indeed often characterize the reality of arbitration around the world