This article explores the business of international commercial arbitration. In particular, it looks at how to make it more responsive to the needs of its users in terms of cost-effectiveness, efficiency and practicality (especially in relation to the enforcement of arbitral awards). It concludes that a multi-layered approach is required, whereby legislators, judges, arbitral institutions and other stakeholders have a part to play in ensuring that international commercial arbitration is competitive and provides end users with value for money.
It is time to consider the business side of international dispute resolution more candidly. That requires asking tough and potentially embarrassing questions. In particular, those in the profession of providing international dispute resolution services should be frankly questioning whether their work simply feeds on the conflicts and miseries of commercial enterprises or whether there is a worthwhile “value-added” element in the services on offer. In other words, is there substance to the accusation that the international dispute resolution is essentially parasitic? Whether there is substance to the accusation, how can (or how does) the apparently burgeoning industry of cross-border commercial dispute resolution justify itself?
If those in the business of international dispute resolution are to be regarded as more than vultures circling over squabbling commercial entities, it must be because the industry provides a valuable service to its clientele, that is, to society at large.
That service (it is submitted) should at least satisfy the following three critical requirements:
(2) efficient; and
(3) of practical use or (in other words) its end product must be amenable to
These three requirements (there may be others) will provide the structure for the observations in this article. There are undoubtedly significant problems in each of these three areas. The account here does not purport to deal comprehensively with the three problems nor to catalogue their many potential solutions. The problems and their possible solutions are in any event well-trodden territory.
The intention is instead to highlight some developments that should give cause to be optimistic about the future. Nonetheless, in the course of what is discussed below, some measures will be suggested that may help to realise the full potential of the international dispute resolution business. Further, although there will be occasional references to mediation, the focus here will be firmly on international arbitration.