TWENTY FIRST CENTURY ARBITRATION : THE QUESTION OF TRUST

Abstract

Trust is woven into the fabric of international arbitration to an intimate degree. This is a statement that may sound trite, such is the natural place of trust at the core of the arbitral process. The selection of decision-makers and the intuitu personae nature of the arbitrator mandate are important elements that hinge on the parties’ choice of the composition of the tribunal as a key factor to the legitimacy of arbitration. Arbitrators are personally selected and entrusted with administering proceedings and delivering results that instil the parties with confidence in the resolution of cross-border, cross-cultural disputes by means of an ad hoc process devoid of precedent or appeal. Trust, however, is not a static attribution and it does shift over time. As ways of doing business evolve, as new types of commercial transactions emerge, so the nature of the disputes arising out of these transactions changes, as does the vector for their resolution.The time component of dispute resolution is not appreciated or measured in the same manner on- and off-line. E-commerce demands a dispute resolution system that responds to, and reflects, its immediacy, low cost, speed of execution, cross-border and technology-reliant nature. This state of affairs has been exacerbated by the COVID-19 pandemic. The concept of trust, however defined, also imports the broader societal factors that are present at a given time in history: to the generation born at the turn of the millenium, the voluminous approval of anonymous peers on social media carries more weight than the views of three individual decision-makers, however reputed and knowledgeable, selected by word of mouth. This increasingly dominant voice in the marketplace prompts the question whether a less time-consuming approach to arbitration’s traditional reliance on due process might constitute an acceptable trade-off to elicit a speedier, peer consensus-based, cheaper decision, thereby delivering more satisfaction to e-commerce users, and thus garnering more trust. It is with this reality that 21st century arbitration must come to terms, and which I am exploring in this contribution. This is a short thought-piece for Professor George Bermann's Festschrift. Professor Bermann cares tremendously about the legitimacy of international arbitration as a global dispute resolution mechanism. It is fitting, therefore, that a contribution on the place of trust in international arbitration should appear in this compendium celebrating Professor Bermann’s life and career, in this era where the legitimacy of arbitral decisions and outcomes is being redefined by technological advancements.