Chapter 2 - Characterisation Of Arbitration - International Arbitration Law And Practice, Third Edition
Mauro Rubino-Sammartano is a Partner at LawFed-BRSA. Mr. Rubino-Sammartano is currently the President of the European Court of Arbitration and of the Mediation Centre of Europe, the Mediterranean and Middle East. He is also an associate member, as Italian advocate of Littleton Chambers in London. Mr. Rubino-Sammartano has acted and regularly acts as chairman, party-appointed, sole arbitrator and counsel in a large number of arbitral proceedings. His practice is largely based on international and national litigation and arbitration in the field of contracts, construction law, mergers and acquisitions, sales of goods, joint ventures and interlocutory injunctions.
Originally from International Arbitration Law and Practice, Third Edition
NOTION AND ROLE OF ARBITRATION
2.1. The Notion of Arbitration
Arbitration is a proceeding for solving disputes that issues from an agreement made between parties. It has the scope to govern the dispute’s resolution, and therefore, produces procedural effects. Its origin goes back thousands of years and traces of the method are to be found in Greece, Rome,1 China and in the life of Prophet Mohamed.
In Fiona Trust,2 Lord Hoffman dealt at length with the implications of its consensual nature:
Arbitration is consensual. It depends upon the intention of the parties as expressed in their agreement. Only the agreement can tell you what kind of disputes they intended to submit to arbitration. But the meaning which parties intended to express by the words which they used will be affected by the commercial background and the reader’s understanding of the purpose for which the agreement was made. Businessmen in particular are assumed to have entered into agreements to achieve some rational commercial purpose and an understanding of this purpose will influence the way in which one interprets their language.
Its essence was defined by a noted scholar3 as having “les trois composantes, justice, caractère privé, origine contractuelle, [lesquelles] donnent ensemble sa physionomie à l’institution.”
CHAPTER 2 : CHARACTERIZATION OF ARBITRATION
Notion and Role of Arbitration
2.1 The Notion of Arbitration
2.2 The Architecture and Role of Arbitration and of National State Courts
2.3 Superiority of Arbitration or Equal Alternative
2.4 The Mandate of the Arbitral Tribunal
2.5 Distinction between Arbitration and a Joint Mandate to Settle
Battle of Theories
2.6 The Doctrine of Mere Contractual Contents
2.7 The Doctrine of Judicial Contents
2.8 The Doctrine of an Hybrid Nature
2.9 The Doctrine of an Autonomous Nature
2.10 The Sharp Position Taken in Cinisello Balsamo
2.11 Jurisdictional Effects of the Award?
Arbitration as a Separate Jurisdiction
2.12 The Nature of Arbitration
2.13 Does Arbitration Belong to the Ordinary Jurisdiction and Does Its Award Have the Same Nature as a Court Judgment?