Originally from American Review of International Arbitration - ARIA

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I. INTRODUCTION

J. Gillis Wetter’s article, to which I have been asked to respond, is based on a paper first presented at a conference entitled ICC Arbitration in Action, held in London in September 1989, at which the present author also spoke.1

This conference, organized by the Centre of Construction Law and Management, King’s College, London, had a special significance. Only a decade ago it would have been inconceivable that the ICC, based in Paris and then sometimes mistakenly considered to be a pure creature of civil law, would be the subject of a two-day conference convened at the initiative of the English in the very birthplace of the common law, with speakers and participants representing the very best of the English arbitration scene.

Equally significant was the fact that of the twenty or so speakers — all English except for the present author and Dr. Wetter — only Dr. Wetter expressed fundamental criticism of ICC arbitration. His views deserve comment, however, because they pose one overriding, essential question: Is the present system of ICC arbitration but a relic of the past, doomed to extinction unless leveled and rebuilt or, to the contrary, is the ICC Court a viable institution offering unique features that constitute important guarantees in what everyone recognizes is the constantly evolving and increasingly complex world of international commercial arbitration?

Dr. Wetter may question my credentials to respond to this question, as his article states that those intimately connected with an institution may “inevitably lose the distance and detachment” required to assess it (p. 96). However, I frankly do not believe this to be the case, for who other than a person responsible for the institution in question has a greater interest in seeing it, “warts and all,” in order to best secure its future? In any event, since Dr. Wetter’s article focuses almost exclusively on perceived warts to the exclusion of the rest of the face and body, I have no hesitation in endeavoring to put matters in perspective, as best can be done within the confines of an article that of necessity is reactive, with the limitations that implies.