Is Arbitration A Service To Business Or To The Legal Profession?

Abstract

Competition seems to be central to theory and practice in international arbitration. There is competition among countries to attract as many cases as possible; competition among institutions to be at the forefront of practice in the field, now that arbitration has become a business; and competition among arbitrators. The chapter asks whether there are many arbitral tribunals, once seized of a matter, that decide that they do not have jurisdiction. The second reason for dissatisfaction with status quo is that, because the question is not closed with the decision of arbitral tribunal but can be reopened at enforcement stage, it hangs over the heads of parties who may have to fight the case all the way, including on the merits, only to discover that the award is void because the arbitral tribunal lacked competence from the outset. The third reason is that competence-competence rule is sometimes pushed to absurd limits.Keywords: arbitral tribunals; arbitrators; business; competition; international arbitration; jurisdiction; legal profession