Substantive Fairness in International Commercial Arbitration: Achievable through an Arbitral Appeals Process? - Arbitration: The International Journal of Arbitration, Mediation and Dispute Management View Substantive Fairness in International Commercial Arbitration: Achievable through an Arbitral Appeals Process? by - Arbitration: The International Journal of Arbitration, Mediation and Dispute Management Substantive Fairness in International Commercial Arbitration: Achievable through an Arbitral Appeals Process? 84 2

The general absence of any review on the merits is considered to be one of the key features of international commercial arbitration and is generally regarded as a comparative advantage over litigation in national courts, which typically provide for multiple levels of appeal. The quid pro quo of finality is said to be fairness, given that there is generally no means of correcting an arbitral award which contains errors. However, a growing movement places a greater emphasis on fairness, advocating the introduction of some form of appeals mechanism. This article seeks to evaluate whether an arbitral appeals mechanism would achieve the objective of enhancing fairness in international commercial arbitration by examining the error correction function of appellate courts. It engages in a comparative analysis of the structure and contextual context of appeals in national court systems and the purposed arbitral appeals process in international commercial arbitration. It is argued that the absence of a hierarchical structure and its integral features, which are considered to be fundamental to the error correction function, together with the highly contextual and systemic nature of correcting errors on appeal in national court systems present significant challenges to achieving the objective of enhancing fairness through an appeals process in international commercial arbitration.

Arbitration: The International Journal of Arbitration, Mediation and Dispute Management