22 décembre 2016

OUVRAGE : B.A. Warwas, The Liability of Arbitral Institutions: Legitimacy Challenges and Functional Responses

Barbara Alicja WARWAS

The topic of civil liability in international arbitration, a controversial topic that has heretofore not been fully explored in the scholarship, is approached in an innovative fashion in this book. Recently, arbitral institutions have emerged as powerful actors with new functions in and outside arbitration processes and the author proposes to shift the debate on liability from arbitrators to the arbitral institutions.

The book re-evaluates the orthodox understanding of the status, functions, and responsibility of arbitral institutions and is recommended for arbitration scholars, practitioners, and students. It is argued that the current regulations regarding liability are inadequate given both the contractual obligations and the emerging public function of arbitral institutions and that institutional arbitral liability is therefore necessary. The book also links the contemporary functions of arbitral institutions to recent debates regarding legitimacy challenges in international commercial arbitration. Responding to these challenges, a model of institutional contractual liability is proposed that invites arbitral institutions to proactively regulate the scope of their liability.


1. Introduction
1.1. Setting the Scene
1.2. Why Would Arbitration Users Sue Arbitral Institutions?
1.3 The Two Legitimacy Pressures and Efficiency
1.4. How to Respond to the Trend of Increasing Liability Suits? Preliminary Proposals
1.5. Methodology
1.6. Organization of the Book
2 Status and Functions of Modern Arbitral Institutions
2.1. Introduction
2.2. Arbitral Institutions as Service Providers? The Mainstream Definitions of Institutional Arbitration Condemned
2.3. Dual Function of Arbitral Institutions in the Contemporary Arbitration System
2.4. Conclusion in the Context of Institutional Liability: On the Relationship Between the Emerging Public Function, Efficiency, and Legitimacy of Institutional Regimes
3. The Triad of Modern Functions of Arbitral Institutions—in Search of the Sources and Scope of Institutional Arbitral Liability
3.1. Introduction
3.2. The Legal Dimension
3.3. The Societal Dimension
3.4. The Economic Dimension
3.5. Conclusion: The Sources and Optimal Scope of Institutional Arbitral Liability
4. On How the Current Institutional Regulations of Liability Do Not Respond to the Triad of Institutional Functions
4.1. Introduction
4.2. Legal Problems with Institutional Contractual Immunity
4.3. On the Problems with the Societal Dimension
4.4. Imperfect Competition and the Harmonized Contractual Institutional Immunity: On the Problems with the Economic Dimension
4.5. Conclusion
5. The Legal Dimension of Institutional Arbitration: On the Current National Regulations and “Visions” of Institutional Arbitral Liability
5.1. Introduction
5.2. National Regulations
5.3. Philosophical Approach to the International Institutional Function: On “Visions”
5.4. Conclusion
6. Cutting the Gordian Knot: Proposals for the Institutional Reform of Arbitral Liability
6.1. Introduction
6.2. The Weaknesses of the Current Proposals
6.3. Institutional Liability Models: Possible Alternatives
6.4. On How the Proposed Model Responds to the Three Dimensions of Institutional Functions
6.5. Conclusion
7. The Level and Scope of the Public Regulations on Institutional Arbitral Liability: Proposals
7.1. Introduction
7.2. Which Level for the Public Regulation?
7.3. The Scope of National Reforms
7.4. Conclusion
8. ConclusionRisk Acceptance Versus Risk Avoidance: On Why Arbitral Institutions Should Eventually Reform Their Liability
8.1. Institutional Arbitral Liability as a Recurrent Issue
8.2. Proposals in a Nutshell
8.3. Institutional Arbitral Liability and the Need for Self-Regulation
8.4. Arbitral Institutional Liability Advances the Legal, Societal, and Economic Facets of Arbitral Institutions
8.5. Institutional Arbitral Liability as a Response to the Dual Legitimacy Challenges

Barbara Alicja WARWAS, The Liability of Arbitral Institutions: Legitimacy Challenges and Functional Responses, La Haye, T.M.C. Asser Press, 2016 (383 pp.)

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