Originally from World Arbitration And Mediation Review (WAMR)

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STEMMING THE TIDE OF JUDICIALISATION

IN INTERNATIONAL ARBITRATION
Alan Redfern

I. INTRODUCTION
International arbitration, which has been colloquially described as
“the only game in town”1 for the effective resolution of international
business disputes, is becoming weighed down by practices and
procedures derived from the adversarial court system. This was not
meant to happen. Historically, international arbitration has stood
robustly apart from litigation in national courts of law.
The aim of international arbitration is the same as that of the
courts: to carry out an enquiry into the relevant facts and law and to
deliver a decision which is final and binding upon the parties. But the
history and ethos of international arbitration is different. It is a private
system of justice, which operates largely without reference to state
courts and which has developed, essentially, to deal with international
business disputes. This is expressly recognised in the various sets of
rules that have been established for the conduct of international
arbitrations. The International Chamber of Commerce (ICC) Rules,
for example, state that they were drawn up to “provide for the
settlement by arbitration of business disputes of an international
character;”2 and for its part, the General Assembly of the United
Nations, in adopting the United Nations Commission on International
Trade Law (UNCITRAL) Arbitration Rules, expressly recognised