Originally from European International Arbitration Review

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Introduction

Arbitration has been seen for a long time solely within the scope of business matters between international companies. However, although these arbitration proceedings usually present an international element, recent cases before the Court of Justice of the European Union demonstrate that arbitration as an alternative dispute resolution is also growing within Member States. From international law to commercial justice, arbitration has become more and more important throughout the years.

For Carbonneau, “[a]rbitration is a private, generally informal, and non-judicial trial procedure for adjudicating disputes. It functions as an alternative to judicial litigation by providing binding determinations through presumably less expensive, more efficient and expert, and nonetheless fair proceedings.” 

It is quite intriguing to observe that arbitration was not often used until the adoption of the Geneva Protocol of 1923. In fact, this agreement was very important for the spread of arbitration since it validated arbitration clauses, which were mostly prohibited at the time by national laws. Moreover, the Geneva Protocol imposed an obligation on national courts to respect the binding force of arbitration agreements, by ordering judges to refer to arbitrators any disputes subjected to an arbitration clause. 

While in the field of public international law arbitration was initially considered as a preferable alternative to wars, it began to be used in favor of expanding global trade. I would like to quote Professor Albert Van den Berg who said, “the foreign court can be an alien environment for a businessman because of his unfamiliarity with the procedure which may be followed, the laws to be applied, and even the mentality of the foreign judges. In contrast, with international commercial arbitration[,] parties coming from different legal systems can provide for a procedure which is mutually acceptable.”