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Summary LLM International Dispute Resolution - International Commercial Arbitration II - Module 1 (Legitimacy of International Arbitration)£6.49
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Describe the evolution of arbitration.
How do parties, institutions, states and arbitrators participate in arbitration?
How has the legitimacy of arbitration affected parties, arbitration community, states, outsiders?
How does the arbitrators' independence and impartiality affect parties, arbitr...
Describe the evolution of international arbitration.
The demand for arbitration has changed. There are more diverse arbitration users such as
states and state entities who were previously reticent to relinquish control over dispute
resolutions. They also arose from diverse industries, such as the financial industry which
previously preferred court litigation. More complex disputes are submitted to arbitrations
involving at least two parties under single contract, contracts between different parties, and
multi-polar disputes.
Rules and procedures have become more judicialized due to the increasing demand for
predictability. This is because there is no real consensus on various issues since rules cannot
resolve them (‘no one-size-fits-all solutions’). For example, treaties, laws and guidelines are
now increasingly detailed, as well as interplay which is often difficult to navigate.
The number and diversity of participants have increased. Emmanuel Gaillard 1 comments on
the different type of actors involved in the design of the arbitration framework.
Essential actors
Parties want to prevail, pay little and recover all their costs. They will feel most neglected in
contemporary arbitration.
Arbitrators attract the most attention from a sociological standpoint. They are now considered
a social-professional category, rather than occasional by nature. Catherine Rogers does ‘not
seek to evaluate whether international arbitrators actually satisfy the criteria for any particular
definition of a profession, but rather to suggest that international arbitrators demonstrate
some of the markers of professionalization and have consciously invoked the nomenclature
of professionalism.’2 They also act as service providers, in which they charge for their
services.
1
Emmanuel Gaillard (2015) ‘Sociology of international arbitration’, Arbitration International, Volume 31, pp.
1–17.
2
Catherine A Rogers, ‘The Vocation of International Arbitrators’ (2005) 20 American University International
Law Review 957, 976–77.
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