DEFERENCE OF SEAT OR FOREIGN COURTS TO INTERNATIONAL COMMERCIAL ARBITRATION TRIBUNALS CONCERNING PROCEDURAL ISSUES: AUSTRALIA IN REGIONAL AND GLOBAL CONTEXTS
This Chapter’s assigned topic is more complicated and wide‐ranging than it seems, even if focusing on international commercial arbitration (ICA), rather than investment treaty arbitration (implicating greater public interests and controversies1) and domestic arbitration. First, what do we mean by“deference”? In the contemporary ICA system, various key actors seem increasingly to follow determinations by others – at least partially. Yet which others are more influential or persuasive, does that change over time, and does deference depend on the specific issue? To address such nuances, this Chapter will end with a case study of developments in Australia particularly since 2010. It represents a fairly typical state attempting to become a more attractive seat for ICA by adopting the UNCITRAL Model Law on ICA (ML),2 partly by drawing on caselaw from England and the United States but also other ML jurisdictions (notably Hong Kong and Singapore) addressing problems alleged in arbitral procedures.
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