Reference : Beyond Contract - The Case for Default Arbitration in International Commercial Disputes
Scientific journals : Article
Law, criminology & political science : European & international law
http://hdl.handle.net/10993/24425
Beyond Contract - The Case for Default Arbitration in International Commercial Disputes
English
Cuniberti, Gilles mailto [University of Luxembourg > Faculty of Law, Economics and Finance (FDEF) > Law Research Unit]
2009
Fordham International Law Journal
Fordham University School of Law
32
2
417-488
No
International
0747-9395
[en] Arbitration is a creature of contract. It is a mode of dispute resolution which is only available to parties who have agreed to resort to it. Yet, it is widely perceived as the most suitable and the dominant method for the settlement of international commercial disputes. Why is it, then, that parties must opt in for a solution which appears as the most natural one in the community? The Article explores whether arbitration could become a default solution and thus lose its contractual foundation. The core of the Article discusses the numerous objections that such a proposition raises. Most importantly, I argue that the legitimacy of arbitrators would not be significantly lower than the legitimacy of courts, and that recent developments in specialized fields of international arbitration have shown that arbitrators can serve the public functions of courts. At the end of the Article, a model of non-consensual arbitration is proposed.
http://hdl.handle.net/10993/24425

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