Originally from American Review of International Arbitration - ARIA

Preview Page

THIRD GENERATION ARBITRATION
BY THE EUROPEAN COURT OF ARBITRATION
Mauro Rubino-Sammartano∗

I. ARBITRATION UNDER SEVERE CRITICISM

International arbitration is subject to criticism by users on several grounds:
• First, not infrequently the parties are not given a reasonable opportunity to
present their case;
• Second; because it does not always produce fair decisions (even if
sometimes they are technically correct);
• Third, because there is no appeal on the merits against the award;
• Fourth, because of its (here, too, not rare) excessive duration and costs;
• Fifth, the arbitrator frequently maintains a cold and distant approach;
• Finally, because it does not limit over-lawyering.

II. NEED TO RECOGNIZE WEAKNESSES

Such criticism is sometimes justified in the opinion of the author and, if one
accepts it, this is not to be against arbitration, but on the contrary is a necessary
preamble to efforts to improve it.

III. SUBSTANTIAL AVAILABLE IMPROVEMENTS

It is suggested that substantial improvements are available.

A. No Party-Appointed Arbitrators

First, the practice of party-appointed arbitrators should be abandoned. This
tribute to the rule of symmetry (each party appoints an arbitrator) may and does
affect the process, because it inserts in the deliberation room voices, each of which
frequently supports the views of its appointor.

One would not accept in court proceedings that each party appoint one of the
three judges who form a panel. The same must apply to arbitration.