Consensual Justice: Challenges and Promises - Chapter 1 - Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years
Figures recently gathered in major jurisdictions such as Sao Paulo and Beijing reveal an ever-increasing number of commercial disputes that end up being settled by arbitration. Many of those disputes are connected to more than one country, and it does not take much to predict that arbitration will continue to provide the most suitable method of dispute resolution for effective planning of international business transactions.
Yet, despite its substantial achievements, this consensual model for settling international disputes still faces one of its greatest challenges: Where and how to find the answer to a myriad of questions which are not addressed in the agreement of the parties or in the arbitral rules adopted by the parties. Rather than being governed by a set of clear and predictable rules specifically addressing international commercial disputes, a substantial number of recurring procedural and quasi-procedural issues frequently arising during the course of an arbitration remain anchored to some domestic law—be it the law governing the cause of action, the law of the arbitral seat or of the place where the award may sought to be enforced—instead of being governed by international or “transnational” standards. I am referring to issues at on the borderline between procedure and substance, such as (in no particular order of importance):
• Whether the parties have waived their right to arbitrate;
• The period of time within which an arbitral claim must be brought (which in many jurisdictions may be considered a procedural question subject to the law of the forum and in others, a matter of substance governed by the law applicable to the merits);