Barbara Alicja Warwas

Cutting the Gordian Knot: Proposals for the Institutional Reform of Arbitral Liability

This chapter presents a few proposals for further reform of the private regulations of liability by arbitral institutions. These proposals aim at focusing on practical issues that reflect the possible wording of the limitation of liability clauses to be taken into consideration by institutional arbitration actors. This is done with a view to both the analysis of the sources and optimal scope of institutional arbitral liability provided in Chap. 3 and the presentation of the shortcomings of the contemporary private regulations of institutional arbitral liability in Chap. 4.

The Triad of Modern Functions of Arbitral Institutions—in Search of the Sources and Scope of Institutional Arbitral Liability

This chapter aims at identifying both the sources and optimal scope of the modern institutional liability, by analysing three major pillars of the institutional activity (so-called “triad” of modern institutional functions): the legal, societal, and economic dimensions of institutional arbitration.

Conclusion. Risk Acceptance Versus Risk Avoidance: On Why Arbitral Institutions Should Eventually Reform Their Liability

The issue of institutional arbitral liability is a recurrent discussion amongst practitioners and academics. This debate usually revives when a controversial liability claim is filed against an arbitral institution in a court of law in the relevant jurisdiction. The primary aim of this book was to systemize these debates on institutional arbitral liability to encourage efficient proposals on the topic. It was suggested that arbitral institutions should take a proactive approach to the contractual regulations of the scope of their own liability and, to a certain extent, to the liability of individual arbitrators that work under the aegis of those institutions on a repeat or accidental basis.

The Legal Dimension of Institutional Arbitration: On the Current National Regulations and “Visions” of Institutional Arbitral Liability

The discussion on institutional regulations of liability in Chap. 4 demonstrated that the effectiveness and enforceability of liability clauses contained in the arbitration rules are largely dependent on the legal regulations of liability of institutional arbitration actors stemming from domestic laws. Against this background, this chapter compares the current national legal regulations of both institutional arbitration and the scope of liability of institutional arbitration actors (if any), as well as the different approaches of domestic courts to the prospective liability of arbitration institutions as expressed in case law from jurisdictions where the leading arbitral institutions are headquartered.

The Level and Scope of the Public Regulations on Institutional Arbitral Liability: Proposals

In Chap. 6, an ideal model of contractual institutional liability was proposed in light of all of the above, this chapter turns to normative issues related to the possible amendment to the laws concerning the operation of arbitration, as well as to the changes to the public approaches to institutional arbitration contracts and institutional liability, as determined by domestic jurisprudence.

Status and Functions of Modern Arbitral Institutions

Chap. 1 set forth the arguments for a discussion on the changing status and functions of arbitral institutions in and outside arbitration proceedings. The purpose of this chapter is threefold. First, the chapter aims at providing a critical analysis of the current mainstream definitions of institutional arbitration. Second, the chapter presents an innovative functional definition of the contemporary dual function of institutional arbitration. Lastly, the chapter analyses the interplay between the efficiency and legitimacy of the traditional commercial function of arbitral institutions and the emerging public function of institutional arbitration.

On How the Current Institutional Regulations of Liability Do Not Respond to the Triad of Institutional Functions

Against the background of the optimal scope of institutional arbitral liability proposed in Chap. 3, this chapter aims at demonstrating the lack of an accurate response by the current institutional regulations of civil liability to the triad of institutional functions reflecting the desirable pillars and scope of institutional arbitral liability.