I. INTRODUCTION

 

 

This, in essence, was the rather pessimistic statement concluding an in-house

counsel’s interview conducted for a recent empirical research on international

arbitration.1 The opinion of this experienced “user” of arbitration was that the

process had become so “judicialized”2 that corporations would soon stop using it

for the resolution of their cross-border disputes.3 To apply a Darwinist metaphor,

international arbitration, as a species of dispute resolution mechanisms, is,

according to the interviewee, about to be supplanted by other species (e.g.,

mediation, dispute boards, adjudication) because these alternative mechanisms are

better equipped to deal with cross-border commercial disputes. But is this so?

 

 

If the dissatisfaction of a sizeable number of international arbitration users

with the costs and duration of the process is well documented,4 the same is not

true of the alleged judicialization of international arbitration. The phenomenon has

attracted attention over the years;5 nonetheless, little research into its causes,

extent, or meaning has been carried out. In this context, the central questions that

this article addresses are: Has there been a significant judicialization of

international arbitration in recent years? and Is this judicialization really a sign of

a loss of attraction for international arbitration?

 

 

For these purposes, conventional assumptions about the extent and meaning of

the phenomenon of judicialization in international arbitration are assessed in the

light of empirical data. Naturally, the difficulty with empirical research in

international arbitration is that data is scarce.6 By definition, there is almost no

data available on ad hoc7 arbitration.8 For institutional arbitration, although some

arbitral institutions offer data relating to their overall caseload,9 few publish data
on the arbitration process itself.10 In addition, when such data is available it rarely