Developing efficient dispute resolution solutions for international commercial disputes: ways to address concerns associated with the combined use of mediation and arbitration by the same neutral

Securing fast, inexpensive and enforceable redress is vital for the development of international commerce. In a changing international commercial dispute resolution landscape, the combined use of mediation and arbitration, and particularly a combination where the same neutral acts as a mediator and an arbitrator (same neutral (arb)-med-arb), has emerged as a dispute resolution approach offering these benefits. However, to date there has been little agreement on several aspects of the combined use of processes, which the literature often explains by reference to the practitioner’s legal culture. There is a heated debate in the international dispute resolution community as to whether it is appropriate for the same neutral to conduct both mediation and arbitration. When the same neutral acts as a mediator and an arbitrator, caucuses become a primary concern. This is largely due to the danger that an arbitrator will appear to be, or actually be biased, and the risk that the process may offend the principles of due process.

A review of the literature shows that the combined use of mediation and arbitration raises more questions and concerns than it offers answers and solutions. This thesis proposes remedies for this situation. The purpose of this thesis is twofold. First, to investigate ways to address concerns associated with the same neutral (arb)-med-arb, which should allow parties to benefit from time and cost efficiencies of the process and the ability to obtain an internationally enforceable result. Second, to examine whether the perception and use of the same neutral (arb)-med-arb varies depending on the practitioner’s legal culture. The research involved an analysis of legal sources complemented by a two stage empirical study conducted through questionnaire and interview.

The thesis identifies three major ways to address concerns associated with the same neutral (arb)-med-arb: 1) the involvement of different neutrals in combinations, 2) procedural modifications of the same neutral (arb)-med-arb, and 3) the implementation of safeguards for using the same neutral (arb)-med-arb. It demonstrates that not all of these ways will achieve the goals of fast, inexpensive and enforceable dispute resolution. The results support the conclusion that the perception and use of the same neutral (arb)-med-arb varies throughout the world depending on the practitioner’s legal culture. This and other factors ultimately affect the choice of ways to address concerns associated with the same neutral (arb)-med-arb. Further to these significant results, the thesis argues that the same neutral (arb)-med-arb is not a ‘one-size-fits-all’ process. Other combinations discussed in the thesis require more attention from practitioners and academics.

This thesis makes a substantial and original contribution to the understanding of combinations in international commercial dispute resolution in four ways. First, the empirical study is the first study to investigate specifically the use of combinations in international commercial dispute resolution. Its results shed light on the use of combinations in international commercial dispute resolution, their common triggers, the way in which the processes are combined most frequently, and the most common forms of recording the outcome of combinations. Second, the thesis synthesises existing ways of addressing concerns associated with the same neutral (arb)-med-arb in international commercial dispute resolution and groups them into the three major categories mentioned above. Third, having identified that there is scope for a more widespread use of combinations in international commercial dispute resolution, the thesis provides recommendations on how to enhance the use of combinations. Finally, the thesis highlights several areas where future research is needed.