18th Annual Lecture
Campbell McLachlan

The Hidden World of International Arbitration

At the AUWCL Center on International Commercial Arbitration’s 18th Annual Arbitration Lecture, Professor Campbell McLachlan KC spoke on “The Hidden World of Arbitration.” The lecture began with welcome remarks from Maria Chedid, global co-chair of Arnold & Porter’s International Arbitration Practice Group. AUWCL Professor of Law David Snyder, who directs the school’s Business Law Program, introduced Professor McLachlan on behalf of the WCL Arbitration Center.  McLachlan’s topic alluded to the inner workings of the arbitral process, specifically the law of procedure in the arbitration process.  

McLachlan developed five specific points regarding arbitral proceedings.  His first point was about the lack of internal perspective on the arbitration process.  He described arbitration law as a silhouette. He argued that the arbitration procedure is about more than just procedure.  Commercial arbitration procedures also concern national courts’ external role in the arbitral process.  McLachlan further noted that, within international arbitral procedures, topics discussed are only preliminary to the actual conduct of the arbitral process itself.  There is a lack of discussion about the internal arbitral procedure.  He continued by clarifying how arbitration procedures do not resemble civil procedures. McLachlan also discussed his own experience and stated that parties entering arbitration agreements exercise their right to choose the procedure by specifying a pre-existing set of procedural rules.  Yet, most institutional rules only provide a general framework and reserve most issues relating to the process for the Tribunal and the parties to resolve. 

In McLachlan’s second point, he stated that most procedural decisions made in international arbitrations, at least up to this point, have never been made public.  This is different from Investment Arbitration by extension because the Iran-US Claims Tribunal, under the Claims Settlement Declaration, applied the UNCITRAL Rules as the basis for its procedural rules.  The availability of procedural decisions and Orders in investment arbitration has been “quite uneven,” according to the Secretary-General of the International Court of Arbitration.  Article III.1 of the 2014 UNCITRAL Rules on Transparency and Treaty-based Investor-state Arbitration provides for the general rule that Orders, Decisions, and Awards are to be published.

In McLachlan’s third and fourth points, he stated that tribunals tend to be unduly reactive in responding to requests from the parties for procedural Orders.  The number of potential issues requiring the Tribunal’s decision can reach unimaginable proportions. Video conference technology can facilitate more regular communication between the parties and the Tribunal with no complex and expensive travel arrangements.  The Tribunal's task is to provide a party with a reasonable opportunity to be heard.  A tribunal faces at least two parties and is bound to treat both parties equally. McLachlan concluded by stating that the setting of the procedural timetable is the most important way for each party to receive the proper opportunity, at the appropriate time, to plead its case.

This 18th Washington College of Law Annual Lecture on International Commercial Arbitration was sponsored by Arnold & Porter and organized by the law school’s Center on International Commercial Arbitration, which is directed by independent arbitrator and former ICC Court secretary general Horacio A. Grigera Naón.