Future challenges and paradigmatic changes in international arbitration: A peek behind the curtain

Abstract

The unprecedented growth of international arbitration and the current state of euphoria should not serve to obscure the several challenges that lie ahead. While some challenges may only concern practical, albeit manageable issues, others may well turn into existential crisis. Will arbitration survive the backlash against it? Arbitration has come under the intense scrutiny of civil society, with many critical voices questioning whether international arbitration is an appropriate mode of dispute resolution, particularly for disputes that have important implications on national public policy and sovereignty, such as investment disputes. The Guardian (December 2013) described international investment tribunals as a “toxic mechanism” that allows “big corporations to sue governments before secretive arbitration panels composed of corporate lawyers, which bypass domestic courts and override the will of parliaments”. Meanwhile, a new law enacted last month in Qatar modernizing the Arab nation’s arbitration regime is being praised as a welcome development to encourage foreign investment in the country, but some practitioners still question whether the measure is actually a missed opportunity. To change this perception, arbitration lawyers and institutions must demonstrate the potential contribution of international arbitration to the rule of law. They also need to demonstrate that arbitration can function as an open and transparent system that takes account of the public interest, and can be a force of good not only for business but for civil society too.