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Rethinking International Commercial Arbitration: Towards Default Arbitration

Rethinking International Commercial Arbitration: Towards Default Arbitration

Author: Gilles Cuniberti
Publisher: Edward Elgar Publishing
ISBN: 9781786432391
Published In: May 2017
Format: Hardback
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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Description
Contents

Details

Arbitration is the normal and preferred mode for resolving international commercial disputes. Its essential advantage over national courts is that is offers neutrality of adjudication, as each party avoids litigating in the court of origin of the other.

Despite this unique and fundamental advantage, arbitration is only available where both parties have consented to it. This innovative book proposes a fundamental rethink of this assumption and argues that arbitration should become the default mode of resolution in international commercial disputes.

The book first discusses the most important arguments against this proposal and responds to them. In particular, it addresses the issue of the legitimacy of arbitrators and the compatibility of the idea with constitutional guarantees afforded by European human rights law and US constitutional law.

The book then presents several models of non-consensual arbitration that could be implemented to afford neutral adjudication in disputes between parties originating from different jurisdictions, to offer an additional alternative forum in the doctrine of forum non conveniens, or to save judicial costs.

The first dedicated exploration into the groundbreaking concept of arbitration as a default mode of resolution of international commercial disputes, Rethinking International Commercial Arbitration will appeal to scholars, students and practitioners in arbitration and international litigation

Part I Why Promote Arbitration
1. The Most Suitable Mode of Dispute Resolution

Part II The Decline of Consent in Modern Arbitration
2. Foreign Investment Arbitration
3. Domain Name Arbitration
4. The French Experience

Part III Policy Analysis
5. The Legitimacy of Private International Adjudication
6. The Public Functions of Courts

Part IV Constitutional Constraints
7. European Law
8. The Constitution of the United States

Part V Models of Default Arbitration
9. The Proposed Model
10. Variant 1: Arbitration as Forum Conveniens
11. Variant 2: Ending the Commercial Judicial Subsidy

Part VI Implementation
12. Indirect Paths
13. Direct Paths

Index