Commercial Arbitration without Hearings: The Court of Innovative Arbitration

AuthorRichard McLaren & Kaleigh Hawkins-Schulz
chapter seventeen
Commercial Arbitration without
Hearings: The Court of Innovative
riChArd mClArEn & KAlEiGh hAWKins-sChulz
The Court of Innovative Arbitration (COIA) was established in
late 2015 to provide an expedited commercial arbitration pro-
cess in response to the reality that commercial arbitrations were
becoming more lengthy and costly.1 The COIA is modelled after
the Basketball Arbitral Tribunal (BAT), which was established
in 2007. This chapter describes the principles and procedures
underlying the COIA, and it describes how the BAT, as the par-
ent from which the COIA emerged, operates to explain how the
COIA is likely to develop. The chapter also discusses how the
conceptual principles underlying the COIA are gaining inter-
national momentum and posits that the COIA is emerging as
a strong contender to be a successful and widely used mode of
commercial dispute resolution in the future.
1 See Dirk-Reiner Martens & Heiner Kahlert, “Back to the Roots of Arbitration
Kluwer Arbitration Blog (26 October 2015), online: http://kluwerarbitrationblog.
riChArd mClArEn & KAlEiGh hAWKins-sChulz
1) Ex aequo et bono
The foremost foundational pillar of the COIA is that decisions
can be based on principles of ex aequo et bono, that is, justice and
fairness as recognized internationally. The COIA Arbitration Rules
state, “If the Arbitrator is authorized by the parties to decide the
dispute ex aequo et bono . . . , he shall apply general considerations
of justice and fairness instead of any particular national or inter-
national law.2 This is the case irrespective of the parties’ domicile
or the seat of arbitration.
The application of a foreign national or international law very
often causes signicant delay as the arbitrator is most likely not
familiar with such law. Under traditional principles of commer-
cial arbitration, the proof of foreign legal systems must be ob-
tained through expert testimony. Having been educated on the
content of the foreign legal principles, the arbitrator must then
interpret the contract and other aspects of the dispute in accord-
ance with the applicable domestic laws. To apply foreign law is
both time-consuming and expensive. An expert in the foreign law
to be utilized must rst be accepted by the parties and the arbi-
trator as being such. If accepted, the expert must then opine upon
the parameters of the foreign law applicable to the dispute at arbi-
tration. This is an especially relevant consideration for cases that
may be submitted to the COIA since many commercial matters
have an international dimension.
The clash of conicting local domestic laws in an international
commercial arbitration is at the centre of the diculties in inter-
national commercial law disputes, and relying on ex aequo et bono
avoids this pitfall. The use of the principle of ex aequo et bono also
eliminates the possibility of conict or unfairness surrounding
the use of expert witnesses.3 For example, one party may not be in
2 COIA (Court of Innovative Arbitration) Arbitration Rules (in force as of 1 Oc-
tober 2015) art 16.3, online:
151001-COIA-Arbitration-Rules.pdf [COIA Rules].
3 See Martens & Kahlert, above note 1.

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