‘WEAPON OF CHOICE’ – ARBITRATION AND CROSS-BORDER DISPUTE RESOLUTION
Amid a range of factors, it is perhaps the globalisation of commerce, trade and investment that has influenced the function of international law most significantly, and with it the mechanisms deployed to resolve cross-border disputes.
Litigation aside, as a means of settling a disagreement, there are numerous alternative dispute resolution (ADR) mechanisms available, including negotiation, mediation, conciliation, arbitration and private judging. But it is arbitration that is routinely touted by practitioners as the ‘weapon of choice’ for resolving cross-border disputes.
Arbitration, in an international context, and like its counterpart domestic arbitration, is a private form of binding dispute resolution before a neutral decision maker or tribunal predicated on party agreement. Its success, as a host of partakers can attest, is irrefutable.
Testifying to this success is White & Case LLP’s ‘2022 International Arbitration Survey: Adapting arbitration to a changing world’, which found that international arbitration is the preferred method of resolving cross-border disputes for 90 percent of respondents, either on a standalone basis (31 percent) or in conjunction with ADR (59 percent).
Flexibility and speed. Although many court systems constantly try to make litigation more efficient, arbitration is generally more flexible. The arbitral institutions’ procedural rules typically afford arbitrators a large amount of freedom to deal with procedural matters.
Jul-Sep 2023 issue
Fraser Tennant