Authors: Tony Cole*, Pietro Ortolani** and Barbara Warwas***
Published: October 2015
Description:
I. INTRODUCTION
Arbitration has achieved a central place in dispute resolution around the globe, whether as a mechanism for the resolution of high value disputes between companies engaged in cross-border transactions, or for the resolution of smaller consumer, business or employment disputes. Despite this prominence, however, little is actually known about the practice of arbitration beyond the elite confines of top-level international commercial arbitration.
Books and articles on arbitration are certainly now common, and an extensive network of arbitration conferences exists around the world. As a result, despite the confidentiality that often shrouds individual arbitrations, information is unquestionably readily available about both arbitration law and arbitration practice. The difficulty, however, is that the dissemination of information about arbitration through publications and conference talks ensures that an overwhelming focus is placed on the work of elite practitioners, with broader trends in arbitral practice receiving little attention.
Both published articles and conference speeches, after all, are written/delivered either by elite practitioners themselves, by academics with little direct knowledge of contemporary arbitral practice who unavoidably must rely on the information provided by elite practitioners, or by individuals wishing to become elite practitioners themselves who therefore have an incentive to portray their own practice as consistent with that of elite practitioners. In a field, that is, in which cross-border practice dominates attention, and career progression depends on personal contacts, there is not only little incentive to emphasize local deviations from the transnational norms of elite arbitral practice, but strong disincentives to do so.
It was with this situation in mind that when the Legal Affairs Committee of the European Parliament commissioned the authors of this article, along with other members of the Brunel Centre for the Study of Arbitration and Cross-Border Investment, to undertake a study of the “Legal Instruments and Practice of Arbitration across the EU” (the “Study”), it was decided that a central platform of that Study should be large-scale empirical research dedicated to identifying the realities of arbitral practice in each of the States in the European Union plus Switzerland.3 This empirical research took the form of a Survey of arbitration practitioners across the European Union and Switzerland, consisting of 95 questions,4 and addressing such diverse topics as the backgrounds of arbitration practitioners, the procedures used in the arbitrations in which respondents had been involved, the considerations important for recommending arbitration and for selecting an arbitrator, and environmental questions such as the attitude of judges towards arbitration and the desirability of action by the European Union to harmonize arbitration law across the European Union (the “Survey”).
The present article reports on and discusses the results of this Survey with respect to six States collectively described here as constituting “Southern Europe”: Cyprus, Greece, Italy, Malta, Portugal and Spain. While these States share an obvious geographic proximity, it is important to emphasize that the decision to collect them into a single article was made not just on this geographic basis, but also due to certain cultural and legal elements shared by these States that might be thought to impact on local arbitral practice. Thus, for example, each of these States has a highly developed legal profession, thereby providing a large number of individuals with the legal expertise necessary to support an effective system of arbitration. In addition, each of these States has had long-standing problems with the slowness of domestic court litigation, a situation that is often seen as a major encouragement to the development of arbitration. Nonetheless, while in some of these States certain types of domestic arbitration have developed to a notable level, and some of these States have generated a significant number of individual arbitration practitioners with international reputations, no State discussed in this article has yet achieved any significant international recognition as a forum for arbitration.
The goal of this article, then, is not merely to report the results of the Survey, but is instead to use the results of the Survey, interpreted in the light of the additional information developed in the course of the Study, to generate a picture.
*Tony Cole, Senior Lecturer, Brunel Law School; Director, Brunel Centre for the Study of Arbitration and Cross-Border Investment.
**Pietro Ortolani, Senior Research Fellow, Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law.
***Barbara Warwas, Lecturer in Commercial Law, The Hague University; Of Counsel, Studio Legale Associato Calabresi Guadalupi.