Increasing Legalism in International Commercial Arbitration: A New Theory of Causes, a New Approach to Cures
7 World Arbitration and Mediation Review 117 (2013)
15 Pages Posted: 11 Dec 2013
Date Written: December 10, 2013
Recent years have seen an increasing amount of criticism of international commercial arbitration, primarily because of concerns about excessive legalism and the attendant increase in the amount of time and money spent on the dispute resolution process. The common assumption is that international commercial arbitration has changed, and not for the better.
Much of the blame has been laid at the feet of U.S.-qualified lawyers who are often assumed to have brought U.S. litigation tactics into the arbitral realm. However, closer analysis suggests that other forces may be at work.
This essay considers some alternative causes of increased legalism in international commercial arbitration. One possibility is that changes to the nature of the underlying transactions have affected the types of disputes that commonly arise. Another hypothesis is that increased legalism may be caused by recent developments in arbitration law, including principles relating to non-signatories, regulatory concerns and choice of law.
After outlining the various options, the essay proposes potential cures for each of the alternatives discussed.
Keywords: international commercial arbitration, legalism, backlash, Americanization, multiparty, multicontract, complex commercial transactions, non-signatories, regulation, choice of law, discovery, disclosure
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