I have now been part of the international arbitration community for the past 30 years. During that time, I have seen arbitration mature into a lasting feature of commercial agreements and the leading dispute resolution mechanism. Arbitration owes its growth and popularity to many factors: increasingly inefficient and opaque court proceedings, the ease of enforcement of arbitral awards, the neutrality of the arbitral process and the flexibility offered by arbitration.
That being said, arbitration is not immune from criticism. In achieving much success over the years, international arbitration has also fallen victim in that process to some shortcomings it was intended to circumvent.
Arbitration is now facing a significant hurdle in that it is becoming increasingly rigid in certain important respects, leaving little room for critical reflection and innovation in terms of process. In my experience, there now tends to be a knee-jerk reaction by parties after deciding to commence arbitration in terms of process: they will typically produce at least two rounds of written submissions, which are accompanied by fact witness statements and several expert reports for quantum, legal and other issues, an intensive and voluminous document production phase, a hearing lasting anywhere between a few days to a few weeks, post-hearing submissions, and costs submissions.
Parties will usually not take the time to consider whether all the above is necessary and whether the procedure could be adapted to the actual needs of a particular case. This lack of critical reflection can result in a ‘default’ ‘one-size-fits-all’ procedure being applied to most arbitral proceedings, which does not fully serve the interests of its users. In doing so, the flexibility that arbitration offers simply becomes window dressing and a lost opportunity.
In this essay, I will share my five suggestions to enhance flexibility and apply procedural innovations as co
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