International commercial arbitration is frequently used as a means of resolving contract disputes involving parties of different nations. Reasons for selecting arbitration over courts include the avoidance of either side’s having a “home court” advantage, privacy as to the matters taken up in the dispute, as well as speed and economy. Participants in international arbitrations have, in recent years, come to question whether the last mentioned of these objectives —speed and economy—has truly been met in international arbitrations as they are actually carried out. Major arbitrations often take as long and cost as much as litigations of the same size and complexity.

Judicialization of Arbitration

Among the reasons for delays between the commencement and termination of many international arbitrations, and for the substantial increase in their costs, is, in addition to procrastination on the part of many arbitrators and counsel, what has been referred to as the growing “judicialization” of complex arbitrations.

This development—in large part the result of efforts to create greater arbitral procedural fairness—has manifested itself primarily in the willingness of the arbitrators or counsel, particularly in arbitrations held in the United States or in arbitrations involving American counsel and arbitrators, to permit—or even require—extensive pre-hearing discovery. Even if limited to exchanges of documents, such discovery may result in much labor intensive work on the part of counsel, disputes regarding the parties’ respective discovery obligations and, of course, enlargement of the body of evidence presented to the tribunal. Combined with the uncooperativeness on the part of parties and routine scheduling difficulties that frequently accompany arbitrations, this judicialization of arbitration has both slowed the process and increased its cost. Over the past two to three years, some efforts have been made to find ways of shortening the time required or and reducing the costs of adjudication of arbitral disputes. The efforts that have been made—some of them heroic—tend to show that increasing the efficiency of international arbitration is not something that can be easily accomplished with a few alterations in the rules of arbitral institutions or even through arrangements made by the parties at the time of their entering into the contract about which the dispute later arises. Rather, successfully expediting international, as well as domestic, arbitrations requires the exercise of will and collaboration by arbitral institutions, arbitrators, parties and their counsel.