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Fifty Shades of International Commercial Arbitration (ICA) – by Chinwe Egbunike-Umegbolu

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The Case of Developing Nations

ABSTRACT

Over the years, the constant desire for justice, peace and the best interest of parties, especially in commercial disputes, has driven the course of conflict management from the traditional litigation formula towards negotiation, mediation, conciliation and arbitration. 

In developing nations, the drift towards international arbitration is becoming a stronger and more regular terrain. In light of this, a debatable pertinent question to answer is whether this trend undermines the capacity of developing nations from developing robust legal systems and infringe upon the rule of law?

 The focus of this paper is on the impact of International Commercial Arbitration as it affects developing nations in the above-given circumstance. For the purposes of this paper, arbitration is considered ‘International’ if it involves parties of different nationalities or if it involves an international dispute.

Keywords: ADR, International Commercial Arbitration, Arbitration, Domestic, International, Developing, Developed, Nations; Nigeria, United Kingdom; Trinidad and Tobago.

                                        INTRODUCTION

                            Domestic Arbitration v. International Arbitration

Both local and international arbitration are geared towards the achievement of the same result both in form and outcome (Moses, Margaret, 2012: 6). However, the concern and focus of this write-up is on international arbitration. As earlier said, arbitration is considered as ‘International’ if it involves parties, or different nationalities, or it involves an international dispute (Nigel Blackaby et al. 2009: 12).

It is apt to state that arbitration is a private way of settling dispute. Hence, parties who arbitrate have consented to resolve their dispute outside any judicial system (Murat Sumer, 2008: 55). However, arbitration is generally used in the commercial field because of the needs of modern trade, thus the importance of arbitration increased in the 20th century (Ibid). The growing prominence of arbitration is definitely as a result of its advantages such as being neutral in nature, flexible and balanced of power it creates.

It suffices to say that arbitration enables parties to have access to more flexibility than court proceedings. It also gives the parties substantial autonomy and control over the process. Hence the sudden surge of businessmen using arbitration because of the sudden setbacks of litigation (Marriott, Arthur, et al. 2003:45). Arbitration gives parties substantial independence and control over the process that will be used to resolve their disputes (Nigel Blackaby et al, 2009:46). However, access to the autonomous area of international arbitration is obtained through contract and the relinquishment of rights by national courts (Lew, Julian D M, 2009: 490). Once entered, arbitration exists on its own ratified domain (Ibid).

Subsequently, arbitration can be piloted by either one arbitrator or a panel of three arbitrators with the parties choosing the rules, or the governing law, and the language of the arbitration (Carole Murray et al. 2012: 3).  In line with the England Arbitration Act of 1996 Sect 5(1), there must be an agreement to arbitrate. Therefore, arbitration is a mutual agreement of parties. Generally, the writing requirement is crucial for there to be arbitration. This is supported by the Article 2 of the New York Convention (1958) that makes writing and signing of an arbitration clause a key requirement. If the parties do not have an arbitration clause in their contract, they can still enter into an arbitration agreement after a dispute has arisen (Moses, Margaret, 2012: 5).

In the light of the foregoing, the writer suggests that where the parties for reasons best known to them prefers the international arbitration, it is therefore in the interest of justice, equity and good conscience that their will should override and be honoured in the circumstance. 

Furthermore, arbitrators are nongovernmental decision makers, they can be said to be private citizens, and the parties chose them to decide (Ibid). However, in arbitration, the arbitrators are expected to be independent and impartial (David St John Sutton et al. 2015:9). Essentially, they can be challenged, either before the arbitral institution or a court, if there is any indication that they are not independent and impartial (Ibid). Like in all other forms of conflict resolution mechanism, arbitration has gone through series of significant changes in both domestic and international terrain. This in turn has its inherent consequence or impact on the local or domestic law (Chinwe A. Mordi, 2016: 3). 

                              The International Factor in Development of Arbitration

With the growth of modern civilisation and technology advancement, the world is fast becoming a global village. Similarly, the world economy, business, political and social communities are growing internationally (Ibid).

In the light of this, it is essential for the business world to evolve a dependable and adaptable method of dispute settlement, dependable, quick, competent and relevant to modern reality of modern business growth (Ibid). This is where arbitration in its international capacity assumes prominence; hence the Institution is now the strongest (Trakman, Leon E. 2012:604).  

For instance, so many institutional bodies such as the American Arbitration Association (AAA), London Court of International Arbitration (LCIA) amongst others have changed their rules to meet the expectations of the disputants to ensure fairness and promote their integrity, parties can either select either ad hoc or Institutional arbitration to settle their disputes (Ibid).

Also, the parties in arbitration have the right to select arbitrators and get to decide the arbitrators who best suit the contract, be it local or international. The fundamental characteristic of International Arbitration is that consent of the parties are required, hence the parties consenting to arbitration in writing limits an arbitrator’s power because an arbitrator can decide only on issues within the scope (Nigel Blackaby et al. 2009:34).

                ADVANTAGES OF INTERNATIONAL COMMERCIAL ARBITRATION 

                                                      Neutrality of the Process 

One of the advantages of arbitration is the neutrality of the process (Prof Emilia Onyema, 2021). Parties to a contract are often not willing to risk having a dispute decided by the other party’s court (Blake Susan et al, 2014:9).  In such circumstance therefore, international arbitration offers the parties the liberty of choice of a neutral venue, choice of law and tribunal. 

The parties have the opportunity to nominate arbitrators not only in whom they can place their trust but also who are best suited to the particular contract (William Park, 1983). It is essential to state that international parties steer away from the courts of each other’s jurisdiction for fear of the perceived ‘hometown advantage (Jonathan Wood, FCIArb, 2025).

                                                                Easy Enforceability

The second advantage is enforceability of an award is easier in many jurisdictions under the New York Convention on the Recognition of foreign Arbitral Awards, over 145 countries are parties needs the signatory states to recognise arbitral award which was enforced in another country (Moses, Margaret, 2012). It suffices to say that an award can be easily enforced in another country once that county is a signatory to the New York convention (William W Park, 2008:8).

                                                                 Expeditious

The expeditious of arbitration which are one of the main advantages of arbitration. There is no denying that arbitration can be subject to delay. Tactics from both the parties and arbitrators – see the judicial interpretation in the case Macao v Sardine (1987). However, even though that delay may occur, it still supersedes the backlog of cases in litigation in many jurisdictions (Walter Mattli, 2003: 90). 

For instance, Pakistan has a backlog of over 2 million cases and similar cases applies to other less developed nations (Jonathan Wood, FCIArb, 2025). On the contrary, International Commercial Arbitration (ICA) is not necessarily expeditious (LCIA, 2020). However, ICA can be efficient depending on the willingness and or corporation of the parties; it has in many cases become economic but expensive (Ibid).

                                                               Confidentiality

The fourth advantage is confidentiality of arbitration which is one of the significant reasons parties choose to arbitrate (Nigel Blackaby, 2009). The case Ali Shipping Corp v Shipyard Trogir [1999] 1 W.L.R. 314 emphasises on the requirement of the parties in the arbitration procedures not to reveal information about the proceedings to any person outside the jurisdiction of the arbitration (Ali Shipping Corp v Shipyard Trogir [1999] 1 W.L.R. 314).

Additionally, In Oxford Shipping Co Ltd v Nippon Yusen Kaisha [1984] the fact of the case reveals that private nature of arbitral proceedings unlike litigation has played an active part thus the proceedings do not have a public record (Oxford Shipping Co Ltd v Nippon Yusen Kaisha [1984]. 

Most especially companies prefer the confidential process because they want to maintain their cordial relationship and also, they do not want the negative outcome to be made public for fear of losing investors (Blake et al, 2014). It is imperative to state that not all International Commercial Arbitration (ICA)- ISDS cases are usually publicised. 

                                               The Choice Factor

The local law has no option of choice at least technically or strictly speaking. There is a stipulated court for every category of cases and matters not within the jurisdiction of a court will be struck out (Chinwe A. Mordi, 2016: 3). However, with arbitration, parties are able to choose the language and free to select the place of arbitration, that is the lex loci arbtiri (William, Park, 1983:21).

In furtherance to this is the case of Abuja international v Meriden SAS hotel where parties are to specifically state the place where arbitration will commence in the arbitration agreement at the initial stage before any dispute arises (Abuja v Meriden SAS hotels (2012) EWHC87). 

Also, in James Miller v Whitworth Street Estates the fact of this case shows that arbitration is controlled by national law, that is a lex arbitri (William, Park, 1983: 24).  However, it is not the law governing the dispute or the procedural rules applied by the arbitrators; rather it directs the arbitral process itself (Ibid).

                                                         Flexibility

Arbitration is flexible in nature; parties to the arbitration process are free to choose an arbitral process to guide them in the proceedings unlike in the national courts where there are laid down rules and regulations which must be followed meticulously (Prof Emilia Onyema, 2021).

                    Arbitrators are Non-Governmental Decision Makers

Arbitrators are perceived to be seen as competent decision makers because they do not belong to any governmental group, thus they are private (Ibid). Unlike in litigation, arbitrators put the parties into consideration, and they are not there to enrich their pockets unlike judges (Moses, Margaret, 2012: 67). There primary aim is to satisfy the parties knowing fully well if they do a good job, they will be selected by the parties if any dispute arises again (Ibid).

                        ARBITRATION AND THE COURT 

Arbitration complements the court towards the dispensation of justice. This fact is same both in domestic and international arbitration and both in poorer nations and in advanced nations. It is therefore doubtful, if not wrong, to submit that international arbitration undermines the capacity of poorer nations to develop mature legal systems and violates the rule of law.

It is a fact that arbitration cannot penalise parties to do something without the help of a court order (Ibid). When coercive powers are needed then the parties or arbitral tribunal will seek the assistance of the court (Moses, Margaret, 2012: 31). Leave of the court will be needed to join a third party even when they are related in the same dispute (Prof Rose-Marie Belle Antoine, 2008: 105). 

Nevertheless, an arbitral tribunal has the power to consolidate or join parties (St David et.al, 2007:45). Sec 35 (1) Arbitration Act 1996 permits consolidation by agreement; many institutional rules provide for joinder and consolidation just like the way in which Sec 103 of the Arbitration Act 1996 comes into play relates to enforcement under the New York Convention, See- (Kabab-Ji v Kout Food Group in the Supreme Court, UKSC/2020/0036).

However, see the judicial interpretation in Sion soleimany v soleimany [1998], here the dispute has been agreed to be settled by arbitration, but the underlined transaction was problematic due to the fact that it was defective in form, it could not be enforced in arbitration because of the illegality in the contract, thus the jurisdiction of the national courts had to intervene (Sion Soleimany v Soleimany [1998] CA).

However, under Sec 68 of Arbitration Act 1996, parties will have to show that there has been serious irregularity, which may cause or can cause substantial injustice before the court can interfere – (Arbitration Act 1996, S,68) though Sections 66 & 68 of the 1996 Arbitration Act deals with difficult cases. However, in the case of (Schwebel v Schwebel [2010] EWHC 3280) the court differed that avoiding tax by planning is not substantive injustice.  

                       The Clash of Some Legal Cultural System with Arbitration

In many Arab countries where the law is mostly Sharia law, they are sceptical to accept arbitration in such Islamic countries. Arbitrators are mostly one of the important elements in arbitration (Dina Elshurafa, 2012). 

However, under Sharia law, their role is surpassed by the role of a Qadi.  In the past, the limited jurisdiction under Islamic law means they cannot arbitrate on the matters of Hadd and La’an or matters contrary to public policy (Ibid). It is focal to point out that due to the prevention of contracts with arbitration as a method of dispute resolution, and the non-existent of arbitral institution and the intervention of state courts, it could be said that Sharia law remains the only law which is applicable to domestic arbitration (Ibid). In recent years, this has changed; for instance, Egypt, Saudi and UAE all have major arbitration institutions.

In the above circumstance, contrary to the fear that international arbitration may undermine the development of local legal system in developing nations; the fact is that the reverse is the case. It is the local legislation or legal system that may adversely affect the development of international arbitration (Julian Lew, 2009: 4).

                              International Arbitration and Rule of Law

International Arbitration should be subjected to the rule of law in any given state (Mattli Walter, 2001: 919). This will give legitimacy and acceptability to the process during enforcement of the award. On the other hand, the rule of law empowers the existence of International Commercial Arbitration (ICA); the interplay therefore is a healthy combination; however, the courts can do without arbitration, but arbitration cannot do without the courts, as the domestic courts ‘police’ the process at the seat, which is why the choice of seat is important. 

Thus, it is arguable to submit that International Arbitration undermines the development of the rule of law in developing nations (The Federal Republic of Nigeria v P&ID [2023] EWHC 2638 (Comm). There is the suspicion of bias by developing countries against arbitration (Ibid). This tends to work against the spirit of neutrality and natural justice. Thus, Arbitration for developing nations on this point works against the rule of law.

                 International Arbitration and Sovereignty: 

When the sovereignty of a state is removed it tantamount to the violation of the rule of law governing the people thus it is glaring that sometimes, why states cannot tolerate any attempt by an arbitral clause to exempt or oust the jurisdiction of the court is to protect the sovereignty of the state. The case of Scott v. Avery, (1853) EX 496 clearly shows and demonstrates that parties cannot by contract oust the jurisdiction of the courts. It is focal to point out that by law the courts cannot be excluded by private agreement (Julian Lew, 2009). Although with the advent of ADR, the law gave room for changes and slowly organises them (Maurat Sumer, 2008).

However, the national court had put a limit to safeguard their jurisdictions limiting powers of the arbitral tribunal and putting in place laws on disputes that are arbitrable and public policy (Ibid). Though it can be said that International commercial arbitration can strengthen the rule of law (Ibid).

        International Arbitration and Developing Nations:
Africa as a Case Study.

The developing countries have been able to participate only in small amount of arbitration and this was because of late independence and thus involvement in arbitration was late (Samson Sempasa, 1992:2). Countries like Kenya, Malawi, Uganda, Zambia, Tanzania, Zimbabwe, and Ghana are based on English arbitration and these countries still use their outdated laws (Ibid). Harmonisation and development of international arbitration in these countries was slow due to different differing political, dynamics and cultural characteristics (Ibid). 

Previously, the developing nations mentioned cannot challenge regulatory norms of international arbitration or law due to lack of finances, thus they are at disadvantage. Though, in recent years Countries like Nigeria enacted The Arbitration and Mediation Act in May 26, 2023 replacing the 1988 Arbitration and Conciliation Act. 

Conversely, in the Caricom region like Trinidad and Tobago’s new Arbitration Act 2024, all Sections of the Act, except Sections 56(3) and (4), are in operation. The new Act repeals and replaces the previous Arbitration Act which was passed in 1939 (Justice Anthon Gafoor, 2024). Though now the situation has changed; there are now recommended arbitration centres in Egypt and using UNICTRAL arbitration Rules.  

Additionally, the Federal Republic of Nigeria v P&ID cases, signifies changes in the previous status quo-Nigeria was well able to challenge the award. These can be used to facilitate the views of arbitration and will enable the specific concerns of African countries, and these views will be generated in two sub-regional centres which can now be developed through specific courses, through the participation of all the countries concerned.

Developing state argue that investments dispute settlement is adopted through a collection of privilege under the rule of law gotten from the stronger nations at the expense of the poorer nations (Ioannis Glinavos, 2011). Though the economic rights universal believe of ‘fair and equitable’ treatment of foreign investors is directed at the financial capacity thus the rationale behind the de-politicization, economy of international investment is program which for economic rationalism, by which the wealthy companies preach about profit-maximizing outcomes that eventually favour them over the developing countries (Trackman Leon, 2012). 

Another issue of contention is that there is no developing capacity in developing countries in anyway like the IMF they tend to carry away the local partners they have worked with, hence hindering the growth and undermining the poorer nation (Ibid).

                          Corruption in Developing Nations 

Corruption in developing nations also affects the effective performance of international arbitration (Andrew Chukwuemerie, 2006).  The writer is of the opinion that corruption especially in developing countries like Nigeria has made serious disputes not to be decided in the country; it is like a vicious circle (Ibid). 

                                         Cost or lack of Fund

It could be said that developing countries do not have the domestic resources it takes to be by their own (Samson L. Sempasa, 1992). Without the economic and political standing required to support themselves, they remain dependent. While international commercial arbitration is designed to be delocalized (Jan Paulsson,1983:53,). Its practical implementation often reveals imbalances. For instance, the International Chamber of Commerce (ICC), despite its claims of impartiality, poses challenges, particularly because international commercial arbitration can exert a chilling effect. This is largely due to the financial implications involved, which developing countries are often ill-equipped to handle due to insufficient economic support (Redfern Hunter, 2004:67).

For instance, Ecuador president in 2009 denounced the international center for settlement of investment dispute (ICSID) he declared that the withdrawal was to free his country from slavery and colonialism with respect to World bank and Washington, these was made public with the president of Bolivia. Although these happened years ago, Venezuela has followed suit (Trakman Leon, 2012: 604). It is essential to point out that arbitrators in the developed countries deal with higher scale of money than the developing counties. This is supported by the case in Hertiage oil and gas Ltd v Tullow Uganda Ltd [2014] EWCA Civ 1048.

In light of the preceding context, concerns have been raised that, in certain instances, international arbitration may hinder the development of advanced legal systems in developing nations and can undermine the rule of law. The writer contends that Alternative Dispute Resolution (ADR) providers such as the ICC, London Court of International Arbitration (LCIA), and American Arbitration Association (AAA) should consistently refine their rules to establish dispute resolution mechanisms that inspire trust and confidence among international parties. This, in turn, would encourage foreign investment and foster greater wealth and prosperity. 

                           RECOMMENDED REFORMS 

                                Need to develop a dependable framework

If developing countries should have a well stipulated and protective clear and concise legal framework that can protect both their economy and the legal system including arbitration, then they can become competitive (Metal clad Corporation v The United Mexican State. ICSID Arb (AF) 97/1.).

More so, if they can scale back on the subsidy to foreign investors and put the resources in developing their law, the treaties should be framed in such way that it protects them and also the investors. The point finds judicial backing in Shell v Ogoni land in Nigeria (2009) (Richard Boele et al, 2001: 1).

Additionally, a clear and transparent law that is free from any interference should be made. A great distinction can be drawn from the case of Metal clad Corporation v the United Mexican States ICSID Arb (AF) 97/1 and Methanex Corporation v United States of America. UNCITRAL (1976). 

In Metal Clad there was no transparency in the law, but in Methanex, they had a transparent mechanism where a law was made on a very clear ground. It is suffixes to say that in developing countries, a well-developed framework will not only protect their economy but also will attract foreign investors than just telling them that they are being done a favour by coming to invest in their countries. 

                                CONCLUSION

In conclusion, as earlier stated, arbitration complements the court and the legal system of a particular state. International arbitration is compliments the domestic legal structure of a state. The two are not two opposites. They work together for good. This fact is same both in domestic and international arbitration and both in developing nations and in developed nations. It is therefore quite incongruous, doubtful, debatable, and misleading to submit that international arbitration undermines the capacity of developing nations to develop sophisticated legal systems and violates the rule of law.

 As a matter of fact, international arbitration is a strong support to the local court, the entire legal system and the economy of the state. The local court is often congested with many cases. Hence, any form of arbitration is a huge relief to the burden of the local legal system. Thus, by relieving the regular legal system of its burden, international arbitration strengthens the focus and efficiency of the local legal system on the matters before it.

In addition to the already earlier enumerated boosts of arbitration, the availability of an option of choosing an international arbitration, boasts the confidence of new investors who are strangers to the local law. The investments of these foreigners in turn increase the wealth of the state in issue. This wealth can be used to strengthen the development of the local legal system, especially in developing nations. It must also be noted that it is the local legal system that creates room for arbitration. An international arbitration would be of no value if it cannot be enforced locally, through the mechanism of the local National Courts though laws in most countries are guided by the New York Convention. Since it is the local legal system that allows the international arbitration, it is therefore incorrect to posit that the development of the local legal system as well as the rule of law is undermined by international arbitration. It therefore suffices to submit that the interplay between international arbitration and the local legal system is a healthy one, comparable to the relationship of a husband and a wife. 

In view of the foregoing, it follows therefore that it grossly incorrect to hold that International Commercial Arbitration that takes dispute resolution outside the jurisdiction of national courts, does in any way, undermine the capacity of developing nations to develop sophisticated legal systems neither does it violate the rule of law.   

BIBLIOGRAPHY

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Websites

 

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Dr Chinwe Egbunike-Umegbolu
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