Why Arbitrate?

Redfern & Hunter have pointed out that the field of international arbitration is ever-changing and ever expanding. Most parties enter international arbitration because they have agreed to an arbitration clause. This practice seems to have extended to the international government sector as well, though the reading does not directly say this. It says that states have started using “agreements to arbitrate” when making treaties with one another, stipulating that any disputes will be resolved through international arbitration. With emerging technologies and “increased complexity of international trade” bringing in more international parties into the picture, it is no surprise that international arbitration keeps expanding.

On another point, because individuals and/or states agree to submit their issues to international arbitrators, whenever there is a dispute and an arbitrator decides the issue, the decision is made enforceable in the international arena.  So, at least when we have parties of equal bargaining power, it seems that arbitration might make states and private parties more responsible and more accountable. On the other hand, international arbitration is becoming increasingly costly and takes an increased amount of time to resolve matters. Worse is the fact that an arbitrator cannot directly enforce awards without the help of a judge, so if there is a losing party unwilling to pay an award, the winning party may have to wait more time to get its money. Sadly, the parties end up seeing the person they were trying to avoid in the first place – a judge.

Thoughts on Culture and Psychological Dynamics in Int'l Arbitration

I was surprised to read in chapter 1 that many lawyers do not study their arbitrators before appearing before them. Perhaps the scientific studies proposed in Chapter 4 are too dense for lawyers to conduct, but the least an attorney could do is research the basic biography of their arbitrator, or at least read a little on the legal culture of the arbitrator's nationality. The lack of preparation that many attorneys put into this process astonishes me because it is a practice many attorneys conduct in the United States, at least when they're about to appear before a judge. Furthermore, researching some basic facts about an arbitrator and her culture seems necessary to conduct any research about the arbitrator's internal road maps. It seems that any advocate who does not research her arbitrator is at a great disadvantage and does a great disservice to her client.