The Idea of Arbitration

by Paulsson, Jan

• ISBN13: 9780199564170
• ISBN10: 0199564175
• Format: Paperback
• Copyright: 2014-01-21
• Publisher: Oxford University Press

Summary

What is arbitration? This volume provides a novel theoretical examination of the concept of arbitration, attempting to answer fundamental questions which have rarely been addressed systematically in English. It explores the place of arbitration in the legal process, offering a challenging, yet accessible overview of the field and its theoretical underpinnings and contending that arbitration is important enough to be understood in its own terms, as a sui generis feature of social life. Why do individuals, companies, and States choose to go to arbitration rather than through litigation? Arbitration can offer increased flexibility and confidentiality, and provides the parties with the opportunity to select the arbitrators. But what makes them want to confide in an arbitrator rather than use the more traditional legal mechanisms for settling disputes? This volume explores what the parties can expect of an arbitrator and whether and how the conduct of an arbitrator might be questioned and under what authority. It examines the ethical challenges to arbitral authority and its moral hazards, evaluating the promises and dangers of self-contained systems of decision-making and compliance.

Author Biography

Jan Paulsson heads the international arbitration practice of Freshfields Bruckhaus Deringer. He has acted as counsel or arbitrator in over 400 arbitrations in Europe, Asia, the US and Africa under the rules of the ICSID, ICC, LCIA, UNCITRAL and the Stockholm Institute. He has also acted in ad hoc arbitrations governed by national laws and before public international law tribunals, including the International Court of Justice. He is currently president of the London Court of International Arbitration and the World Bank Administrative Tribunal.

Table of Contents

Arbitral Omnipotence?

The magic of arbitration

The generous impulse

What is a successful arbitration?

What law creates arbitration?

What law does arbitration create?

The public challenge

The old debate: contractual or judicial?

A better premise: sui generis

Protecting the weak

Arbitrability

Public policy

Private challenges: disappointed litigants

Authority to decide jurisdiction

Jurisdiction v. admissibility

Severability

The right to be heard

Asymmetries

Private challenges: third parties

Beneficiaries or obligors in contract

Members of associations

Shareholders

Creditors

Ethical challenges

Money

Influence

Self-aggrandizement

Fitness to serve

International challenges

Clashes of culture

Inherent inequality of the parties

Inherent advantages of some parties

Private power v. the public interest?

Arbitration unbound?

The erosion of state power

The power vacuum filled

A fluid legal universe

Is this law?

Freedom and empowerment

Self-governance

Virtuous circles

The future

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