Originally from Between East and West: Essays in Honour of Ulf Franke

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It will come as no surprise that the increase in use of international commercial arbitration during the past several decades and developments in teaching international commercial arbitration in law faculties are linked. This short article sets out briefly the development of the concept of international commercial arbitration followed by some developments in teaching about it in law faculties.

I. THE CONCEPT OF INTERNATIONAL COMMERCIAL ARBITRATION

The concept of “international commercial arbitration” is relatively new. The drafters of the 1923 Geneva Protocol on Arbitral Clauses1 and the 1927 Convention for the Execution of Foreign Arbitral Awards2 provided that the arbitrations in question would relate “to existing or future differences between parties subject respectively to the jurisdiction of different Contracting States . . . that may arise in connection with . . . contract(s) relating to commercial matters or to any other matter capable of settlement by arbitration. . . .”3 States were authorized “to limit the obligation mentioned above to contracts which are considered as commercial under its national law.” The entire structure of the two texts suggested that what was in the minds of all participants was primarily the arbitration of international commercial disputes. However, with one exception the arbitration was national, i.e., domestic arbitration of an international trade dispute. In that sense it was similar to domestic litigation of an international commercial dispute.

The single exception was arbitration at the International Chamber of Commerce. From the first organization of the Court of Arbitration in 1923 (International Court of Arbitration, as it is now called) ICC arbitration was conducted in an international spirit. However, a major limitation existed in that the arbitration was subject to the domestic arbitration law of the place of arbitration or, if the arbitration clause called for application of a law of arbitration other than that of the seat of arbitration, the arbitration was subject to that law. This caused significant problems since uniformity was lacking in regard to the requirements of those national laws. Nevertheless, even ICC arbitration was to a significant extent a domestic arbitration subject to those non-uniform laws.