The History of International Commercial Arbitration - A Sketch - Chapter 1
Lord Mustill was formerly President of the Chartered Institute of Arbitrators and is currently a Vice President of the Court of Arbitration of the ICC. He became successively a Judge of the High Court, the Court of Appeal and the Appellate Committee of the House of Lords, retiring from full-time judicial sittings in 1991. While a High Court Judge he acted as Judge of the Commercial Court, to which arbitration questions are referred. Since then he has sat as arbitrator in numerous cases in England and abroad.
I. SCOPE OF REVIEW
To compress the long and varied history of arbitration into 30 pages is not something which could be achieved in any way useful to the readers of the present volume. This sketch lays no claims to scholarship or comprehensiveness, its purpose being only to prepare the ground for the essays which follow of a particular kind of arbitration, to which the distinguished contributors bring the fruits of their lifetimes of practical experience. Notwithstanding the title, the reader will not find here a brief history of arbitration, using the word in its generic sense. Even the written records date back for at least 2,500 years, and some forms of pacific dispute resolution by an impartial third party must be much older than this. A full and scholarly account is well overdue, but when it arrives it will be very long, containing much of no immediate relevance to present day problems and practices. To set the scene for the other essays in this volume attention will therefore be concentrated on the past halfcentury, not only for neatness but also because the types of arbitration have been transformed more radically and abruptly in all their respects since the early 1950s than in their entire recorded history. To understand arbitration of these kinds as they are today, and to form a useful vision of its future, requires a perspective of these changes. Their more distant antecedents are less immediately important, although something must be said about them to show how radically the landscape has changed.
A second foreshortening of perspective must also be pointed out, to avoid a misunderstanding by the reader of what this book as a whole, and the present historical sketch in particular, is intended to be about. The great strength of arbitration lies in its diversity, so that the user is given access to an entire spectrum of methods each of which should have emerged from, and should answer the needs of, a particular commercial environment. The single word “arbitration,” used in the abstract, is therefore a misnomer. Strictly, one should speak, when discussing the subject at large, of “arbitrations” in the plural, for otherwise the sense of diversity may be lost. Of course it is convenient to follow the usual practice, as is the case with the present work, but an explanation is due to those who are well versed in methods of dispute resolution differing from those treated here of why those methods are so little mentioned. This is not because their worth is underestimated, or their intellectual validity belittled. It is emphatically not the case that the contributors to this volume have no esteem for the arbitrating cultures of (to take only one or two examples) the Arab, Chinese-speaking or Hispanic worlds, or the common-law jurisdictions now growing away from their former roots, or again the formerly collectivist economies of central and Eastern Europe; or that they fail to appreciate that there is much in the pasts, presents and futures of these cultures from we can all learn. The reason is simply that the present compilation, and hence inevitably this historical sketch, aim at a particular kind of arbitration practiced in a particular commercial milieu in a particular way (or group of ways). The focus is deep but not broad. For the same reason, the reader should not expect to find more than passing mention of all the ways of conducting cross-border disputes, equally effective in their own ways, which in a literal sense qualify as international commercial arbitrations. A glance at the table of contents and the list of contributors will show that the emphasis is on very large, financially important, lawyer-driven processes, mostly institutional in structure, of a kind practiced especially in the larger commercial centers of the Northern Hemisphere. For the time being these are major sources of doctrine in the world of arbitration as a whole, and it is for this reason alone, that we allow other equally legitimate and effective methods to recede into the background.