Clayton Utz/Sydney University International Arbitration Lecture

Key Points:

What do Darwinism and intelligent design theory have to do with international arbitration?

The connexions between biology and international arbitration were explored by Professor William (Rusty) Park in the third Clayton Utz/Sydney University International Arbitration Lecture, an annual lecture for the promotion of the study of international arbitration and international dispute resolution, in particular in Australasia and the Asia-Pacific.

Professor Park Professor of Law at Boston University, Vice President of the London Court of International Arbitration, Editor of Arbitration International, Chair of the ABA Committee on International Commercial Dispute Resolution, and a member of the NAFTA Financial Services Roster. He sits on the Appeals Tribunal for the International Commission on Holocaust Era Insurance Claims, and during four years served as Arbitrator on the Claims Resolution Tribunal for Dormant Accounts in Switzerland, charged with resolving claims to Swiss bank accounts of Holocaust victims.

In his Lecture, "Apes, Neanderthals and Missing Links: Evolution in International Business Arbitration", Professor Park considered changes in international arbitration as examples of evolution or intelligent design (which posits that developments in species come through conscious design by an intelligent entity). Applied to international arbitration, these concepts reveal the mechanisms of change in three areas.

First, he considered the trend to more limited judicial scrutiny of awards as an amalgam of evolution and intelligent design. As a result, there is now emerging a widespread view that judicial review should neither be full merits review, nor eliminate all recourse.

Judicial scepticism of arbitrators’ jurisdiction has now receded, Professor Park explained, leading to greater scope for arbitration. This aspect of the evolution of international arbitration is however counterbalanced by the trend to regulate arbitration against states by specific provisions in Free Trade Agreements and the US development of permanent appellate bodies. The results of design (albeit not intelligent), these developments show that the evolution of international arbitration can sometimes be two steps forward, one step back.

Professor Park’s final example was of procedure in international arbitration. Parties want efficiency and fairness, but achieving both at the same time is a challenge. Institutional rules often are vague on the requirements of procedural fairness and clear on arbitral discretion, which might be a sound evolutionary strategy and ensure their survival. In practice however arbitral discretion runs into parties’ expectations of fairness drawn from their own often different legal traditions. This gap in the rules is filled by a growing secondary market of opinions, treaties and guidelines, which represent intelligent design at its purest.

In summation, Professor Park emphasised the importance of intelligent design in international arbitration, and of questioning arbitration practices to ensure they help the arbitrators perform their tasks in ways that satisfy parties’ sense of fairness.