Authors: Loukas Mistelis** and Crina Baltag***
Published: December 2009
Categories of Disputes
Enforcement of Arbitral Awards
I. INTRODUCTION: THE CONTEXT OF THE 2008 SURVEY
It has been increasingly accepted, and also empirically proven, in the last ten years that corporations trust and use international arbitration and other alternative dispute resolution processes. While the recognition and establishment of arbitration as a leading method of the settlement of disputes is undisputed, what has been debated in recent years is the efficient use of the system of arbitration. The growth of arbitration has been driven by flaws in the national legal systems and the distrust and suspicion associated with litigation in a foreign country, as well as by the desire to minimize costs and delays in the resolution of a dispute. More importantly, arbitration is a neutral system particularly suitable for crossborder and cross-cultural disputes. However, the shift to arbitration and alternative dispute resolution (“ADR”) mechanisms was not only determined by legal or efficiency factors, but also by such factors as the desire to preserve a working business relationship with the other party and to avoid the negative publicity and aura emanating from court proceedings.
In 2006, the School of International Arbitration at Queen Mary University of London conducted ground-breaking research on major corporations and their perceptions and views towards international arbitration. This was the first survey of its kind and on such a scale targeting major corporations, as the end-users of international arbitration; it has opened the door for further research into the practices of corporations in international dispute resolution processes. The 2006 Study was also the first and largest global, independently conducted, empirical survey on international arbitration, involving 143 corporations, through their corporate counsel (general counsel or head of legal department), from various industries and regions of the world. The Study was directed towards general attitudes and practices of corporations in international commercial arbitration and did not discuss in detail arbitration procedure or the recognition and enforcement proceedings in international arbitration.
The key messages of the 2006 Survey point toward a preference on the part of large corporations for international arbitration and institutional arbitration, in particular. The aim of the 2006 Survey was to reveal the real preference, perceptions and experience of major corporations in international arbitration, by testing the anecdotal evidence present in the arbitration field. Back in 2006, corporate counsel appreciated the advantages of the arbitration procedure (procedural flexibility, enforceability of awards, privacy of the process and selection of arbitrators), but also criticized the disadvantages of the arbitration proceedings (delays and increased costs). Ninety-five percent of the participating corporations in the 2006 Survey indicated at that time that they would continue to use international arbitration, as the advantages of this procedure clearly outweigh any disadvantages.
*Special Section on the 2008 Survey on Corporate Attitudes Towards Recognition and Enforcement of International Arbitral Awards
**Loukas Mistelis, LLB (Hons, Athens), MLE (magna cum laude), Dr. Iuris (summa cum laude) (Hanover), MCIArb, Advocate, is the Clive M. Schmitthoff Professor of Transnational Commercial Law and Arbitration, and Director of the School of International Arbitration, Centre for Commercial Law Studies, Queen Mary University of London.
***Crina Mihaela Baltag, LLB (Bucharest), Master in International Business (Bucharest), LL.M. (Stockholm), PhD Candidate, PricewaterhouseCoopers Research Fellow in International Arbitration at the School of International Arbitration, Centre for Commercial Law Studies, Queen Mary University of London.