Abstract
To be pro-arbitration is to believe that law should always improve.
Immediately, the question arises—but can law not improve without arbitration? There is no doubt that it can. But arbitration—specifically international commercial arbitration, the focus of this contribution—provides a very powerful driver for improvement: an alternative. Courts are public; arbitration is private. Courts have fixed locations, arbitration does not. Courts must apply the law of their jurisdiction, except where that law directs them otherwise; arbitrators apply the law the parties have chosen. Judges are generally selected by public institutions; arbitrators are selected by the parties. The list of differences goes on.
Instead of “alternative,” I almost wrote “competitor,” because arbitration can continue to prosper only if it is a better option than litigation for certain situations. But competition presupposes winners and adversaries, whereas litigation and arbitration improve, rather than defeat, each other.
Arbitration as an alternative to litigation shows what can be better, not just in theory, but very much in practice. Some of the first objections to arbitration were not normative, but practical—lawyers were not able to imagine how the consent-driven approach to dispute resolution that is arbitration could even function. It would never work, they thought. But it has now been shown that it can.
The discussion has therefore shifted to other questions, such as whether litigation or arbitration is better, or whether a particular decision or policy is good for litigation or bad for it, and good for arbitration or bad for it.