Originally from World Arbitration And Mediation Review (WAMR)

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KEYNOTE ADDRESS:

THE QUIET CONVERGENCE OF ARBITRATION
AND LITIGATION
Diane P. Wood*

I. INTRODUCTION

No one wants to become embroiled in a serious commercial
dispute. If that unfortunate event occurs, in principle all sides
would (or should) want to resolve the dispute as Federal Rule of
Civil Procedure 1 puts it, in a “just, speedy, and inexpensive”
manner. For many years now, people have complained – with too
much justification, I am sorry to say – that the courts have been
able to offer only an unjust, slow, and expensive path to civil
dispute resolution. And so, the story goes, private or alternative
options developed to supplement, or maybe even to replace, the
public option (if I may call it that). In the Supreme Court’s recent
decision in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.,1 Justice
Alito summarized the perceived advantages of the primary
alternative to the courts, arbitration, as follows: “In bilateral
arbitration,” he wrote, “parties forgo the procedural rigor and
appellate review of the courts in order to realize the benefits of
private dispute resolution: lower costs, greater efficiency and
speed, and the ability to choose expert adjudicators to resolve
specialized disputes.”2

With those hopes and expectations in mind, commercial
arbitration in general, and international commercial arbitration in
particular, has assumed greater and greater importance. As the
courts struggled with complex multi-party claims, far-reaching
discovery, wars of experts, and crowded dockets, arbitration
seemed to promise a more satisfactory way of dealing with those
inevitable disputes. But does it? Consider what Professor