Volume 30 (2013) / Issue 5
One of the main reasons why parties choose arbitration is the principle of finality, that international arbitral awards cannot be appealed on the merits. While the vast majority of national arbitration legislation and the rules of major arbitral institutions provide for the finality of arbitral awards, there are some exceptions to the rule. This article seeks to review the various appeal mechanisms that exist in international arbitration and to assess, both theoretically and practically, their impact on the principle of finality. It begins by examining the right of appeal to the courts on a question of law under section 69 of the English Arbitration Act 1996. It then explores the emerging trend amongst some international arbitration service providers to amend their rules to provide internal appeal mechanisms in their arbitral procedure, reflecting the perceived need by some users for an alternative to the strict finality provided for in the rules of major institutions. Outside the realm of international commercial arbitration, the International Centre for the Settlement of Investment Disputes (ICSID) annulment regime and the Appeals Division of the Court of Arbitration for Sport (CAS) both provide internal review structures but with contrasting approaches to the finality of awards. It appears that the attraction of any appeal mechanism lies in the way it balances the competing notions of fairness and finality. Ultimately, the author argues that, consistent with party autonomy, appeal mechanisms should not be considered controversial as long as the parties agree on the procedure of any such appeal. Where parties agree to prioritize correctness or fairness over finality, this does not necessarily detract from the principle of finality, but rather conforms with the spirit of arbitration.
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