International Arbitration: Can We Realise the Potential?

Abstract

The article provides an assessment of the state of international arbitration today, including an evaluation of various of the criticisms and proposed remedies that have received publicity within the professional arbitration community over the last year. From the perspective of a practitioner with several decades of experience in both US commercial litigation and international arbitration, the author explores why arbitration has not fulfilled its promise. The author rejects the commonly identified scapegoats, notes the shortcomings of many of the frequently advanced solutions and suggests several steps that could ameliorate certain of the perceived failings. The fundamental problem is that the parties to arbitration agreements and their counsel fail to establish and specify the desired objectives and a suitable framework at the time the arbitration provision is drafted and signed, because that provision is given too low apriority in the negotiation and documentation of the transaction. The author sets out some suggestions as to how that challenge might better be met by parties and their counsel.