Trends and Challenges in International Arbitration: Two Surveys of In-House Counsel of Major Corporations - WAMR 2008 Vol. 2, No. 5
Loukas Mistelis, Clive M. Schmitthoff Professor of Transnational Commercial Law and
Arbitration and Director, School of International Arbitration, School of Law, Queen
Mary, University of London.
Crina Mihaela Baltag, PwC Research Fellow in International Arbitration, School of International
Arbitration, Queen Mary, University of London
Originally from World Arbitration And Mediation Review (WAMR)
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TRENDS AND CHALLENGES IN
INTERNATIONAL ARBITRATION:
TWO SURVEYS OF IN-HOUSE COUNSEL
OF MAJOR CORPORATIONS
Loukas Mistelis∗ and Crina Mihaela Baltag
I. INTRODUCTION AND BACKGROUND
Different standpoints, conflicting commercial expectations, legal
and cultural backgrounds and approaches, or even political and
financial situations make disputes in international transactions a
natural occurrence. Some of these disputes end up adjudicated by
international litigation or arbitration or, in some instances, resolved by
other forms of alternative dispute resolution (ADR). The growing
support for international arbitration (and other forms of ADR) lies
primarily in the flexibility and finality of the process and in the option
given to the disputing parties to choose their neutral(s). International
commercial disputes are often resolved effectively by arbitration. In
fact, if one were to look at statistics of major arbitration institutions,
the inevitable conclusion is that disputing parties refer most major
international commercial disputes to international arbitration rather
than national courts.
One may define international arbitration as:
[…] a specially established mechanism for the final and
binding determination of disputes, concerning a contractual
or other relationship with an international element, by
independent arbitrators, in accordance with procedures,
structures and substantive legal or non-legal standards
chosen directly or indirectly by the parties.1
While many publications and other print and electronic resources
address the law and practice of international arbitration, many
questions remain unanswered: how much do we know about
I. Introduction and Background
II. International Arbitration in 2006—A Corporate View
A. The Use of Arbitration
B. Advantages and Disadvantages Associated with
the Use of International Arbitration
C. Ad Hoc v. Institutional Arbitration
III. International Arbitration in 2008—Recognition
and Enforcement of Arbitral Awards and Settlement
in International Arbitration
A. Overview of International Arbitration
1. Strong preference for international arbitration
2. Corporations are satisfied with international
arbitration
3. The outcome of international arbitration
4. Users of international arbitration
5. Strong support for institutional arbitration
6. Arbitration institutions and arbitral awards
B. Recognition and Enforcement of Arbitral Awards
1. Corporations usually comply with the awards
rendered in international arbitration proceedings
2. Parties do not encounter major difficulties in
recognising and enforcing arbitral awards
3. The state where the non-prevailing party has
most of its assets is the major factor in choosing
the place of enforcement of arbitral awards
4. Average time to recognize, enforce and
execute arbitral awards is less than one year, and
corporations normally recover the full amount
granted by the arbitral tribunal
C. Settlement in International Arbitration
1. Settlements pre-arbitral award
2. Post-arbitral award settlement is used in
international arbitration
IV. The Importance and Impact of the Surveys