The Idea of Arbitration

Author: Jan Paulsson
Publisher: Oxford University Press
ISBN: 9780199564163
Published In: November 2013
Format: Hardback , 336 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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The first volume to provide a theoretical examination of arbitration, which is increasingly common, especially in disputes between investors and states
Written by one of the world's most eminent international arbitration practitioners and scholars
Explores why individuals, companies, and States might choose to go to arbitration rather than through conventional litigation
Examines the public, private, and ethical challenges facing arbitration, and assesses its potential benefits

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.

Readership: Legal scholars and law students, arbitrators and interested legal practitioners.

1: Arbitral Omnipotence?
1.1: The magic of arbitration
1.2: The generous impulse
1.3: What is a successful arbitration?
1.4: What law creates arbitration?
1.5: What law does arbitration create?
2: The public challenge
2.1: The old debate: contractual or judicial?
2.2: A better premise: sui generis
2.3: Protecting the weak
2.4: Arbitrability
2.5: Public policy
3: Private challenges: disappointed litigants
3.1: Authority to decide jurisdiction
3.2: Jurisdiction v. admissibility
3.3: Severability
3.4: The right to be heard
3.5: Asymmetries
4: Private challenges: third parties
4.1: Beneficiaries or obligors in contract
4.2: Members of associations
4.3: Shareholders
4.4: Creditors
5: Ethical challenges
5.1: Money
5.2: Influence
5.3: Self-aggrandizement
5.4: Fitness to serve
6: International challenges
6.1: Clashes of culture
6.2: Inherent inequality of the parties
6.3: Inherent advantages of some parties
6.4: Private power v. the public interest?
7: Arbitration unbound?
7.1: The erosion of state power
7.2: The power vacuum filled
7.3: A fluid legal universe
7.4: Is this law?
8: Freedom and empowerment
8.1: Self-governance
8.2: Virtuous circles
8.3: The future

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.