Originally from Leading Arbitrators' Guide to International Arbitration - 2nd Edition

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When Lawrence Newman and Richard Hill approached me regarding a contribution to the first edition of their intended Guide, I agreed with pleasure. The subject and scope of the publication as well as the authors they mentioned looked like ensuring an interesting publication. Furthermore, many of the other authors are well known to me from personal cooperation over the years in institutions and cases of international arbitration. The success of the book and of related conferences made the project of a second edition an obvious choice and it is a pleasure to update my contribution for that purpose.

Though the usual pending load of current arbitration cases motivates one to comment on more practical issues of arbitration, his suggestion for me to deal with future perspectives looked both intellectually stimulating and dangerous. The danger comes from the inevitably subjective and speculative character of such considerations. The subjectivity remains despite my own practical experience involving cases in the very different major arbitration systems throughout the world, and the speculation can only be tested by the future reader as time goes on.

Finally, in view of the understandable limitations in length that the editor has expressed for contributions to this volume, no more than a few thoughts can be offered and this outline cannot provide any detail or documentation in relation to these thoughts.

II. LOOK TO THE PAST FOR FUTURE PERSPECTIVES

Any serious consideration of possible future developments will have to start by looking at past developments in the respective fields. This is a truism, though, at any point in time, to the observer and even more to the practitioner, the present circumstances, issues, problems and developments will look specific and unique. Most of the time, they are not and, at least, can be better understood if one looks at the developments leading to them. Similarly, future developments will not come “out of the blue,” but will result from past and present developments, both in arbitration itself and in the social, economic and political environment in which the disputes are conducted.

Therefore, it may be at least briefly recalled that the origins of arbitration go back to dispute settlement usages in ancient times, in Europe, in Greece and Rome including Roman law, and in Asia. The Middle Ages revived the Roman tradition and, some centuries later, the French Revolution considered arbitration as a “droit naturel” and the Constitution of 1791 (Article 86) and the Constitution of Year III (Article 210) proclaimed the constitutional right of citizens to resort to arbitration. Parallel thereto, England already had an Arbitration Act of 1697, to which a number of enactments were added over the years up to the “new” Arbitration Act of 1889, which continued to dominate arbitration law in England into the early part of the last Century.