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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
Rémy Gerbay
Arbitration lawyer at Enyo Law LLP in London and an academic at Queen Mary, University of London.
by Alec Stone Sweet and Florian Grisel
Published by Oxford University Press, 2017; 272 pages; ISBN 978-0-19-873972-2
The monograph which is the object of this review is a theoretical work on the evolution of arbitral governance written by two academics, Professor Alec Sweet Stone and Dr. Florian Grisel. It will be a must read for any academic with an interest in international dispute resolution, but it should also capture the interest of those practitioners who occasionally enjoy taking some distance from the subject matter of their craft.
It would be difficult to give a full flavour of what the book offers without saying a few words about the interesting backgrounds of the authors. Professor Stone Sweet is a seasoned political scientist specialising in comparative and international politics, comparative constitutional law, and European integration. He is based at the National University of Singapore, having previously held academic appointments, inter alia, at Yale Law School and Oxford University. He is not, by any account, an arbitration lawyer. By contrast, Dr Florian Grisel, a young academic based simultaneously at King's College London and the prestigious French National Centre for Scientific Research (CNRS), specialises in international arbitration, having worked in private practice with some well-known arbitration firms in Geneva and Paris.
Not surprisingly perhaps, this complementary duo opted to take a broad approach to the subject of their research, namely the evolution of arbitration as a system over the past few decades. To be clear, the book does not aim to look at the evolution of the rules and practices followed in arbitration proceedings. Instead it takes a 'macro-institutional' view of arbitration, which it analyses from 'an external perspective'. In this sense, it is a very different book from The Evolution and Future of International Arbitration, recently co-edited by Stavros Brekoulakis, Julian Lew and Loukas Mistelis (Kluwer, 2016).
Structurally, the book is divided into six parts. The first chapter presents an overview of the main themes of the book, namely judicialisation and arbitral governance, reviewing the academic literature relating to these themes. The book builds on the now twenty-year-old work of Yves Dezalay and Bryant Garth, Dealing in Virtue (University of Chicago Press, 1996), but also on more recent celebrated socio-legal works like Josh Karton's The Culture of International Arbitration and the Evolution of Contract Law (Oxford University Press, 2013). Chapter 2 presents the so-called 'macro-institutional' overview of the development of international arbitration. Chapter 3 analyses 'procedural evolutions' in arbitration. Interestingly, the authors track the evolutions identifiable in the twelve revisions of the ICC Rules of Arbitration from the original 1922 rules to those of 2012. Chapter 4 looks into some of the forces affecting the evolution of the arbitral system, namely the dynamics of reason-giving and law-making. It also addresses the rise of a system of precedent, and the growing demand for means of appeal. Chapter 5 examines how the arbitral system takes into account public interests, and balances property rights against the regulatory prerogatives of states. Chapter 6 then considers the legitimacy of arbitral governance and assesses a number of proposed reforms designed to enhance the system's legitimacy. Ambitiously, the authors aim to cover, in each chapter, both commercial and investment arbitration.
It is admittedly difficult to summarise the main thrust of the book of Sweet Stone and Grisel, in part because it covers a wide range of questions. The central thesis of the book, though, appears to be as follows: Over the past century, international arbitration has undergone an endogenous, self-sustaining process of institutional evolution, which has enhanced the system's governance capacities. This increased institutionalisation was instigated by the actors of the system themselves with a view to satisfying their own 'policy choices' and guaranteeing the effectiveness of the system. This institutionalisation was also, to a degree, imposed on the parties. Such self-induced institutionalisation happened with the blessing of states (and their courts). Increased use of arbitration combined with greater institutionalisation have resulted in a 'legitimacy crisis' for arbitration, which, in turn, has put pressure on some of the traditional tenets of arbitration like confidentiality, party appointments and absence of appeal.
The authors' perceptive and nuanced observations of the system should resonate with those readers who have had the chance of witnessing the evolution of arbitration over the past few decades. Interestingly, the book's historical account of the evolution of the system will provide the readers of the ICC Bulletin with a useful reminder of the unparalleled impact ICC has had on the evolution of the arbitral system over the past century. ICC's influence on the shaping and re-shaping of the system indeed returns as a leitmotif throughout the book.
Ultimately, the authors' account of the evolution of arbitration makes for an interesting read. Because it takes a socio-legal and historical rather than a legal-doctrinal approach, this book nicely complements the existing body of work on the theory of arbitration. Its multidisciplinary stance allows the book to fill a gap in the existing literature. It would not be surprising, therefore, if it were quickly to become a fixture on the reading lists of most universities' arbitration courses.
If one had to try and identify a suggestion for the next edition of the book, it would perhaps be the following: When it discusses commercial arbitration, the book focuses on only one type of commercial arbitration, namely the arbitration of general commercial disputes as we see it at ICC and elsewhere. While, in all fairness, this parti pris is common to most arbitration-related publications, the book could arguably have given more recognition to the rich and multifaceted reality of arbitration, which includes (beyond general commercial arbitration) such other sub-fields as shipping/maritime arbitration, commodities arbitration, and reinsurance arbitration. Each of these sub-fields are characterised by overlapping, but increasingly distinct, sets of actors, who have their own arbitration 'culture'. The idea that there is a monolithic global arbitration community holding the reins of the system is perhaps a myth that this otherwise excellent book could have helped to dispel.