Geoffrey - 2011-11-05 18:41:37
In this Contributor's view, the use of the word "Court" in the context of arbitration is misleeading; I would argue that it has done nothing to help the perceprion and development of arbitration as a true alternative to the State Court, with its rules designed for application to all.
The test of any arbitration is the extent to which it provides an appropriate means of getting to the heart of the dispute. Overzealous mimicry of the techniques of National Judiciiaries cannot help the resolution of issues or, for that matter, the achievement of Justice.
Trans-Lex could take the lead. I hope to press the argument with the ICC and the LCIA; I believe there is some litigation on this matter in Delhi, India, but do not know if it has progressed.
By the way, I am a layman and do not profess or practice Law.
ofroitzheim - 2011-11-06 12:01:05
For me the word "court" is not misleading. Arbitration is in fact very similar to normal court proceedings in a state court. At the end there is an enforceable judgement and basic principles like the right to be heard are undoubtedly applicable.
One should not always decry state proceedings. There may be disadvantages in some state proceedings in several jurisdictions (remember that procedural law and tradition is different from country to country!). Moreover, it is a fact that contradictory proceedings in some way are always compareable.There have to be at least two parties and someone deciding from an independent point of view. If you want this is a mimicry of state proceedings. But in essence, it is the very nature contradictory proceedings.
If the parties want something different they always can opt for mediation which in its rules, procedual method and legal outcome is something new completely different to court proceedings or arbiration.