The Relation between Courts and Arbitration: Support or Hostility

13 Pages Posted: 7 Aug 2012

Date Written: August 6, 2012

Abstract

In an ideal world mediation is almost invariably the preferable method for the settlement of disputes, even compared to arbitration. However, there are many situations where a settlement, whether as a result of mediation, of negotiations or by whatever other means, is simply not possible for a variety of objective or subjective reasons, and recourse to a traditional dispute settlement mechanism becomes unavoidable. Whatever the problems of arbitration in the vast majority of cases it is still the only viable dispute settlement mechanism for international transactions. The differences in State attitudes toward arbitration may lead States and their courts to engage in behaviors that other States, as well as practitioners and commentators who follow the more prevalent views on the law and practice of arbitration, may view as unjustified interferences with the arbitral process. Despite the crucial role of the New York Convention, arbitration is still not subject to a far reaching mandatory harmonization and remains unregulated at the international level. States accordingly retain a broad freedom to favor it but, conversely, also to treat it with distrust. This could leave arbitration in a state of anarchy. Nonetheless, over the past decades there has been a spontaneous evolution towards shared values and approaches in a large number of States. This has led to the emergence of a sort of common law of arbitration.

Keywords: Arbitration, national laws, New York Convention

JEL Classification: K40

Suggested Citation

Radicati di Brozolo, Luca G., The Relation between Courts and Arbitration: Support or Hostility (August 6, 2012). Opinio Juris in Comparatione, No. 1/2012, Paper No. 7. Available at SSRN: https://ssrn.com/abstract=2125445

Luca G. Radicati di Brozolo (Contact Author)

Catholic University of Mlan ( email )

Largo Gemelli, 1
Via Necchi 9
Milan, MI 20123
Italy

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