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Beyond Contract - The Case for Default Arbitration in International Commercial Disputes

62 Pages Posted: 23 Oct 2008 Last revised: 17 Dec 2008

Gilles Cuniberti

University of Luxembourg; Universite du Luxembourg - Faculty of Law, Economics and Finance

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Date Written: October 22, 2008

Abstract

Arbitration is a creature of contract. It is a mode of dispute resolution which is only available to parties who have agreed to resort to it. Yet, it is widely perceived as the most suitable and the dominant method for the settlement of international commercial disputes. Why is it, then, that parties must opt in for a solution which appears as the most natural one in the community? The Article explores whether arbitration could become a default solution and thus lose its contractual foundation. The core of the Article discusses the numerous objections that such a proposition raises. Most importantly, I argue that the legitimacy of arbitrators would not be significantly lower than the legitimacy of courts, and that recent developments in specialized fields of international arbitration have shown that arbitrators can serve the public functions of courts. At the end of the Article, a model of non-consensual arbitration is proposed.

Keywords: International arbitration, International litigation, Alternative dispute resolution, Default, Private adjudication

Suggested Citation

Cuniberti, Gilles, Beyond Contract - The Case for Default Arbitration in International Commercial Disputes (October 22, 2008). Fordham International Law Journal, Vol. 32, No. 2, 2008. Available at SSRN: https://ssrn.com/abstract=1268891

Gilles Cuniberti (Contact Author)

University of Luxembourg ( email )

Faculté de Droit
4, rue Alphonse Weicker
Luxembourg, 2721
Luxembourg

Universite du Luxembourg - Faculty of Law, Economics and Finance ( email )

4 rue Alphonse Weicker
Luxembourg, L-2721
Luxembourg

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