Striking at the ‘One-Kick-At-The-Can’ Character of Arbitration Through the Appellate Arbitration Mechanism.

Abstract

Should things go south, arbitration is a distinctive dispute resolution mechanism as opposed to litigation for the former’s feature of the finality of arbitral awards. By design, a court review of arbitral awards is permitted only on overly limited grounds pertaining to enforcement or set-aside applications. This leave parties with no recourse at the ‘one-kick-at-the-can’ character of arbitration, particularly when there exist obvious errors in arbitral awards. For instance, a party could not appeal against an apparent error committed by the arbitral tribunal in the calculation of damages. If an appellate arbitration mechanism would have existed, these errors, inter alia, could have been (perhaps) rectified by the appellate tribunal upon request of either party. A few national systems (e.g., United States, United Kingdom, France) and arbitral institutions (e.g., the Conflict Prevention and Resolution Appeal Procedure, the JAMS Arbitration Procedure, the European Court of Arbitration Rules) have, however, attempted to cure this lacuna. This article intends to identify if there is a need for an appellate arbitration mechanism. It encourages a discourse on devising an efficacious appellate arbitration mechanism, taking guidance from the existing appellate review mechanis.