Arbitration has achieved a central place in dispute resolution around the

globe, whether as a mechanism for the resolution of high value disputes between

companies engaged in cross-border transactions, or for the resolution of smaller

consumer, business or employment disputes.1 Despite this prominence, however,

little is actually known about the practice of arbitration beyond the elite confines

of top-level international commercial arbitration.

 

Books and articles on arbitration are certainly now common, and an extensive

network of arbitration conferences exists around the world.2 As a result, despite

the confidentiality that often shrouds individual arbitrations, information is

unquestionably readily available about both arbitration law and arbitration

practice. The difficulty, however, is that the dissemination of information about

arbitration through publications and conference talks ensures that an

overwhelming focus is placed on the work of elite practitioners, with broader

trends in arbitral practice receiving little attention.

 

Both published articles and conference speeches, after all, are

written/delivered either by elite practitioners themselves, by academics with little

direct knowledge of contemporary arbitral practice who unavoidably must rely on

the information provided by elite practitioners, or by individuals wishing to

become elite practitioners themselves who therefore have an incentive to portray

their own practice as consistent with that of elite practitioners. In a field, that is,

in which cross-border practice dominates attention, and career progression

depends on personal contacts, there is not only little incentive to emphasize local

deviations from the transnational norms of elite arbitral practice, but strong

disincentives to do so.

 

It was with this situation in mind that when the Legal Affairs Committee of

the European Parliament commissioned the authors of this article, along with

other members of the Brunel Centre for the Study of Arbitration and Cross-Border

Investment, to undertake a study of the “Legal Instruments and Practice of

Arbitration across the EU” (the “Study”), it was decided that a central platform of

that Study should be large-scale empirical research dedicated to identifying the

realities of arbitral practice in each of the States in the European Union plus

Switzerland.3 This empirical research took the form of a Survey of arbitration

practitioners across the European Union and Switzerland, consisting of 95

questions,4 and addressing such diverse topics as the backgrounds of arbitration

practitioners, the procedures used in the arbitrations in which respondents had

been involved, the considerations important for recommending arbitration and for

selecting an arbitrator, and environmental questions such as the attitude of judges

towards arbitration and the desirability of action by the European Union to

harmonize arbitration law across the European Union (the “Survey”).

 

The present article reports on and discusses the results of this Survey with

respect to six States collectively described here as constituting “Southern Europe”:

Cyprus, Greece, Italy, Malta, Portugal and Spain. While these States share an

obvious geographic proximity, it is important to emphasize that the decision to

collect them into a single article was made not just on this geographic basis, but

also due to certain cultural and legal elements shared by these States that might be

thought to impact on local arbitral practice. Thus, for example, each of these

States has a highly developed legal profession, thereby providing a large number

of individuals with the legal expertise necessary to support an effective system of

arbitration. In addition, each of these States has had long-standing problems with

the slowness of domestic court litigation, a situation that is often seen as a major

encouragement to the development of arbitration. Nonetheless, while in some of

these States certain types of domestic arbitration have developed to a notable

level, and some of these States have generated a significant number of individual

arbitration practitioners with international reputations, no State discussed in this

article has yet achieved any significant international recognition as a forum for

arbitration.

 

The goal of this article, then, is not merely to report the results of the Survey,

but is instead to use the results of the Survey, interpreted in the light of the
additional information developed in the course of the Study, to generate a picture