Author: Rémy Gerbay*
Published: December 2014
“International arbitration is on the brink of extinction!”
This, in essence, was the rather pessimistic statement concluding an in-house counsel’s interview conducted for a recent empirical research on international arbitration. The opinion of this experienced “user” of arbitration was that the process had become so “judicialized” that corporations would soon stop using it for the resolution of their cross-border disputes. To apply a Darwinist metaphor, international arbitration, as a species of dispute resolution mechanisms, is, according to the interviewee, about to be supplanted by other species (e.g., mediation, dispute boards, adjudication) because these alternative mechanisms are better equipped to deal with cross-border commercial disputes. But is this so?
If the dissatisfaction of a sizeable number of international arbitration users with the costs and duration of the process is well documented, the same is not true of the alleged judicialization of international arbitration. The phenomenon has attracted attention over the years; nonetheless, little research into its causes, extent, or meaning has been carried out. In this context, the central questions that this article addresses are: Has there been a significant judicialization of international arbitration in recent years? and Is this judicialization really a sign of a loss of attraction for international arbitration?
For these purposes, conventional assumptions about the extent and meaning of the phenomenon of judicialization in international arbitration are assessed in the light of empirical data. Naturally, the difficulty with empirical research in international arbitration is that data is scarce. By definition, there is almost no data available on ad hoc arbitration. For institutional arbitration, although some arbitral institutions offer data relating to their overall caseload, few publish data on the arbitration process itself.10 In addition, when such data is available it rarely…
*Rémy Gerbay, Attorney (N.Y.), Solicitor (England & Wales), LL.M. (Georgetown), MPhil (Geneva), BA Law (Lyon) is an international arbitration lawyer teaching at Queen Mary, University of London, and practicing at Enyo Law LLP. The author would like to thank the Secretariats of the ICC, the LCIA and AAA/ICDR for collating statistical data, and in particular Wing Shek and Sarah Lancaster of the LCIA, Gustav Flecke-Giammarco, Michael Burkart, and Viktor Von Essen of the ICC, and Luis M. Martinez of the AAA/ICDR.