Is Arbitration Losing Ground?* – Vol. 14 No. 3

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Author: Mauro Rubino-Sammartano**

Published: April 2004

Arbitrators and Arbitral Tribunals
Costs and Damages
Review on the Merits
Dispute Resolution and Litigation
Practice and Procedure

Description: The serious concern, expressed about fifteen years ago by this author, that arbitration could lose ground because it does not always comply in many ways with the expectations of the parties, has unfortunately materialized. This concern has been recently echoed by Okekeifere. A large segment of the business community has become aware of arbitration and the number of arbitral proceedings is increasing. However, at the same time an increasing number of users of arbitration are expressing dissatisfaction on various grounds. On occasion dissatisfaction is due to the fact that a party, which was in the wrong, was ruled against in the arbitration. That party’s unhappiness is then not justified. On other occasions, dissatisfaction may well be justified. The best evidence of this is provided by alternative dispute resolution (“ADR”) which is an alternative not only to court proceedings but even to arbitration itself. If arbitration had always met expectations, no alternative to it would have been looked for.

Many of such deficiencies are not due to arbitration itself which, it is submitted, is perfectly capable of rendering service, but to the way it is conducted and administered. It is submitted that we still have time to put things straight again, but that one must act promptly.

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*Current Developments
**President of the European Court of Arbitration; visiting professor of arbitration at several Italian law schools; advocate in Milan and Paris; associate of a chamber of barristers in London.