Author: Mauro Rubino-Sammartano*
Published: December 2010
Description:
I. ARBITRATION UNDER SEVERE CRITICISM
International arbitration is subject to criticism by users on several grounds:
• First, not infrequently the parties are not given a reasonable opportunity to present their case;
• Second; because it does not always produce fair decisions (even if sometimes they are technically correct);
• Third, because there is no appeal on the merits against the award;
• Fourth, because of its (here, too, not rare) excessive duration and costs;
• Fifth, the arbitrator frequently maintains a cold and distant approach;
• Finally, because it does not limit over-lawyering.
II. NEED TO RECOGNIZE WEAKNESSES
Such criticism is sometimes justified in the opinion of the author and, if one accepts it, this is not to be against arbitration, but on the contrary is a necessary preamble to efforts to improve it.
III. SUBSTANTIAL AVAILABLE IMPROVEMENTS
It is suggested that substantial improvements are available.
A. No Party-Appointed Arbitrators
First, the practice of party-appointed arbitrators should be abandoned. This tribute to the rule of symmetry (each party appoints an arbitrator) may and does affect the process, because it inserts in the deliberation room voices, each of which frequently supports the views of its appointor.
One would not accept in court proceedings that each party appoint one of the three judges who form a panel. The same must apply to arbitration.
*Current Developments
**Chartered Arbitrator, President of the European Court of Arbitration, Advocate admitted in Italy and Paris (Associate member of a set of barristers chambers in London).