ADR In England And Wales – Vol. 12 No. 2

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AuthorLoukas Mistelis*

Published: May 2002

Commercial Disputes

Description: The judiciary is traditionally regarded as one of the three state powers. Hence it is the duty of the state to organize a justice system, build the necessary legal and tangible infrastructure, recruit judges and make the services available to the public at a small cost. The state subsidizes the system by employing and often training judges and accordingly guaranteeing their competence and independence. Depending on cultural attitudes, judges and courts are deemed either an emanation of state and expression of state power (civil-law model) or mere service, albeit public service providers (common-law model).

In the wave of liberalization and privatization of public services that swept the western world, as well as the so-called emerging markets in the late twentieth century, alternatives to state judicial systems have been introduced. The United Kingdom has been one of the driving forces of such reforms in Europe; the motto of reform was “access to justice.”

Parallel to the state judicial system a private independent but binding justice system exists and is activated at the initiation of disputants. Arbitration arguably predates state courts and is nowadays widely used for private commercial disputes, often with an international element. Its statutory introduction in the late 17th century was justified as an alternative to a rigid and formalistic litigation system. In arbitration disputants retain the arbitrators, and pay all relevant expenses. Over the years arbitration has been institutionalized and often judicialized.

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*Clive M. Schmitthoff Senior Lecturer in International Commercial Law, School of International Arbitration, Centre for Commercial Law Studies, Queen Mary, University of London.