This site is maintained as a part of The WWW Virtual Library Project. This section of the Virtual Library is devoted to the subject of private dispute resolution.
These notes are not meant to be a detailed introduction to the subject.
Rather they have been written to try and define the scope of this section
of the WWW Virtual Library. It is hoped that it might explain why, in the
end the narrower, but simpler, term ARBITRATION was eventually chosen as
this section's title.
"Dispute Resolution", would have been suitably generic, but besides suffering from the vagueness of generic names, would also have encompassed Litigation.
"Alternative Dispute Resolution" would -to European minds, at least- have excluded Arbitration ... ed Arbitration ... ...
ARBITRATION is the judicial determination of a dispute, by a third person of the disputing parties' choosing. Whilst the parties in dispute may be any number, two is the most frequent number. The dispute resolving 'third person' may be an individual (an arbitrator) or a tribunal. The tribunal may consist of any number of arbitrators, though some legal systems (for obvious reasons) insist on an uneven number. The word, tribunal, is also often used to encompass a tribunal of one. One and three are the most frequent numbers of arbitrators.
The tribunal members may be appointed :
Traditionally arbitration is classified as follows;
Methods of settling 'public' disputes (disputes between states):
The methods described in the First Hague Convention (the Convention for the Pacific Settlement of International Disputes, The Hague, July 29th 1899) are:
Besides methods agreed to from time to time by states, it is also possible for them to grant jurisdiction to the INTERNATIONAL COURT OF JUSTICE. Founded in April 1946, as the successor to the Permanent Court of International Justice (itself founded in the 1920's).
Methods of settling private disputes:
Private methods of settling private disputes (that is non-Court based)
methods are referred to as methods of ALTERNATIVE DISPUTE RESOLUTION
in North America. In Europe the term, ADR, is used more narrowly to mean
methods alternative to litigation and/or arbitration.
Litigation and arbitration imtration.
Litigation and arbitration impose a binding decision on the parties, other methods do not. Thus is Europe ADR refers solely to the methods that require the parties to agree on a settlement.
In recent years Courts have experimented with methods of reducing their case loads. Requiring parties to state they have attempted mediation, directing that parties take their case to mediation or arbitration, etc. Terms such as Court Annexed Mediation, Court Annexed Arbitration of the Multi-door Court House have flourished.
The following non-Court methods are often spoken about:
The rise of the 'mixed' dispute:
Public (state:state) Arbitration and then later Commercial
(private) Arbitration both grew up in a World where states were not over
active in commerce or vice versa.
The Twentieth Century has seen all states, whatever their political persuasion, become more active in the day-to-day economic activities of their countries. In particular the latter half of the Twentieth Century has seen many situations where the corporations of wealthy countries have sought to invest in other countries, and doing so often by contracting with a state-owned or para-statal corporation. Thus disputes, when they arise may be "disputes between two parties of which only one is a state", to quote in part the titltate", to quote in part the title of arbitration rules published by the Permanent Court of Arbitration in 1993. The PCA rules had previously restricted themselves to state:state disputes.
ICSID, the World Bank's International Centre for the Settlement of Investment Disputes, was established to handle disputes between investors and states or investors and state or quasi-state bodies.
Beyond the extension as to the nature of the parties, it should also be noted that the NAFTA Treaty and the Energy Charter Treaty both contain provisions obliging states to arbitrate with third parties. Such 'Non-consensual arbitration', or 'Arbitration without privity' seems set to be growth area (and one perhaps that states may not enjoy).
Whatever, as we enter the Twenty-First Century, the taxonomic boundaries in arbitration, indeed in dispute resolution as a whole, are probably the least clear they have ever been. This is a sign of healthy growth. It is also problematic for the maintainer (and the user) of a site such as this.
This site is designed to be a rapid reference to key resources, not least including links to the Internet's best resources. If you know of something that should be here and isn't please let us know. Thanks!
Please send any adds/changes/deletions/comments regarding this subject index to Michael Chapman ( email@example.com ).
Copyright (c) 1999 Michael Chapman. Interarb is a trade mark.
Author: firstname.lastname@example.org - http://www.mchapman.com/arb/
Last updated: March 5th, 1999.