Authority and Contemporary International Arbitration

Abstract

The article argues that contemporary international arbitration is currently beset by a "legitimacy" problem, deriving from the procedures that have been adopted to adjust arbitration to the resolution of international disputes. Specifically, the article argues that contemporary international arbitral awards do not possess authority for the parties receiving them, and that this loss of authority is responsible for the increasing rate at which parties attempt to have awards vacated by courts. An analysis of the authority of legal decisions is undertaken, and it is argued that contemporary international awards possess none of the forms of authority available to them. This is then explained in terms of problems with the way arbitrators are selected in contemporary international arbitration, and the role arbitrators are expected to fulfill.

The article then concludes with two suggestions that it is argued can restore authority to arbitral awards: (1) the introduction of a "procedural mediator", whose role would be to design the proceedings of an arbitration to fit the parties and the dispute, and (2) the acceptance in international arbitration that arbitrators should act as advocates for the party that nominated them to the arbitral panel.

Keywords: arbitration, authority, jurisprudence, dispute resolution