Originally from American Review of International Arbitration - ARIA

Preview Page

I.   CRITICISM OF A FULL SUIT OF ARMOR

[...]

Originally growing out of a need for a more solid and speedy justice, arbitration has become entangled in a jungle of legal arguments. It has been transformed in many jurisdictions into a lengthy and expensive exercise.

The question then has to be asked whether arbitration is still a genuine alternative to litigation.  Several voices have been heard expressing concern.   A search for other alternatives has begun, some of which have been sought under the broad umbrella of Alternative Dispute Resolution (“ADR”).  It has been suggested that ADR may provide better alternatives, not only to court litigation, but even to arbitration, which no longer appears to be as good a solution as once thought.

It is argued here that this view is not correct.  It is not arbitration itself, but badly conducted arbitration, which is not acceptable. It results from inadequate arbitration rules, poorly administered arbitration, and arbitrators who do not discharge their tasks within a proper time frame, or who have or devote little time and/or attention to the proceedings.  Properly conducted arbitration is still, in our view, an effective mechanism that may provide a satisfactory solution to disputes, be they international or domestic.  But apart from the basic distinction between proceedings that are properly conducted and those that are not, there is a perception, both among law observers as well as among those professionals within the arbitration community who generally do not have a legal background, that the proceedings have become overlawyered.

[...]

Whatever the reasons, many arbitral proceedings suffer from these shortcomings.  This has given rise to a widespread negative attitude toward arbitration. The real alternatives to this situation  have not been adequately considered.  At this stage, arbitrators and counsel cannot remain passive when faced with the question of whether, consciously or not, they have overlawyered arbitration.  In an attempt to offer a response, or at least some comments to this query, this paper will try to distinguish between the essential parts of the arbitration process and those parts of this “armor” which possibly should be dismantled.