Due Process in International Commercial Arbitration

582 Pages·2010·1.45 MB·English

by  Matti S. Kurkela

D U E P R O C E S S I N
I N T E R N AT I O N A L
C O M M E R C I A L
A R B I T R AT I O N
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D U E P R O C E S S I N
I N T E R N AT I O N A L
C O M M E R C I A L
A R B I T R AT I O N
SECOND EDITION
M A T T I S . K U R K E L A
S A N T T U T U R U N E N
A N D
C O N F L I C T M A N A G E M E N T
I N S T I T U T E ( C O M I )
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Library of Congress Cataloging-in-Publication Data
Kurkela, Matti, 1951–
Due process in international commercial arbitration / Matti S. Kurkela, Santtu Turunen,
and Confl ict Management Institute (COMI).— 2nd ed.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-537713-2 ((hardback) : alk. paper)
1. Arbitration and award, International. 2. Due process of law.
3. Arbitration agreements, Commercial. I. Turunen, Santtu.
II. Helsingin yliopisto. Conflict Management Institute. III. Title.
K2400.K86 2010
347'.09–dc22 2009046433
_____________________________________________
1 2 3 4 5 6 7 8 9
Printed in the United States of America on acid-free paper.
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Dedication
With a thousand thanks to Pirjo,
Jaakko (5), Tuomo (4) and Saana (2)
for the joy in my life
and
to the staff and colleagues at Hannes Snellman
for giving me the facilities and their support
in my endeavours
Matti S. Kurkela
Dedicated to those who strive for the settlement of confl icts by sophisticated and
civilized methods in our global community
Matti S. Kurkela, Santtu Turunen and Confl ict Management Institute(COMI)
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Preface to the Second Edition
Due process is an emerging doctrine in international arbitration. Increasing attention
is paid to fairness of arbitral procedure and the procedural safeguards in the proceed-
ings. On the other hand, the traditional benefi ts of fl exibility, effi ciency and fi nality of
arbitration as a method of dispute resolution have to be considered. Thus, the doctrine
of due process is not only current, but also critical for the future of arbitration as a
method of dispute resolution.
W e would like to thank professor (h.c.) Matti S. Kurkela for his pioneer work with
the fi rst edition of the book, and the trust vested in COMI with the second edition. The
second edition of the book is produced by University of Helsinki Confl ict Management
Institute, COMI. COMI is a research institute focused on judicial confl ict manage-
ment. Arbitration is one of the key areas of research in COMI. The institute has coor-
dinated research work, published several books and organized various seminars on law
of arbitration. It has also developed teaching of arbitration at the faculty of law of the
University of Helsinki. The support association of the institute also offers institutiona-
lised arbitration.
Finally, we would like to thank Santtu Turunen for doing extensive work on the 1st
edition, work that has make this new edition possible. He conducted the research nec-
essary for updating and wrote new sections with great care and skill. This 2nd edition
would not exist without his immense labor. The board of COMI, including professor
Jarno Tepora and research director Risto Koulu, has reviewed the changes in the
second edition. In addition, COMI would like to thank all the people who have taken
part in the process of preparing the book, and especially the production team of Oxford
University Press.
Helsinki, January 20, 2010
Jarno Tepora and Risto Koulu
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Foreword to the First Edition
International arbitrations “fl oat” above national jurisdictions like many international
transactions. To submit international arbitration to a national law may be grossly arti-
fi cial. The great issue is the extent to which the great principles of arbitration law and
the arbitration practice or “usage” are common or uniform to trading nations and are as
such horizontal or “fl oating” in lieu of forming a vertical pyramid like national laws.
In my research on letters of credit in the 1980’s I attempted to develop an acid test to
identify substantive l ex mercatoria in banking and fi nancial transactions. The test
included three elements: the international character of the transaction; a reasonable
expectation of a trade usage being applicable regardless of contacts to any jurisdiction
and the reasonableness and equitability of such a rule. The same test could m utatis
mutandis be applied to international arbitration: international character; reasonable
expectation of an arbitration “usage” to be applicable; reasonableness and equitability.
The practitioners of international arbitration have sometimes argued for an interna-
tional appeal board or panel for rapid review and control of the enforceability of the
awards given. Perhaps we could introduce such a control mechanism, at the fi rst stage
perhaps a non-binding review of “due process” on a consultative basis to promote the
enforceability of the awards, to give guidance to national courts and to eliminate the
risks of arbitrary or manifestly erroneous awards. The Confl ict Management Institute
of the University of Helsinki Law School could perhaps prepare and submit a proposal
in this respect.
I am very grateful for the great assistance of my assistant Heidi Lautjärvi in writing
this book, the devoted staff of Hannes Snellman library for helping me in the research
and my partners at Hannes Snellman for giving me the opportunity and facilities to
write this book.
Helsinki, March 18, 2005
Matti S. Kurkela
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