The Transactional Side of the International Arbitration and the Role of Corporate Counsel

Abstract

In the business community, almost 100% of arbitrations are initiated by companies. For them, arbitration is clearly an appropriate way to solve disputes when breaches of contracts or treaties are evident and it is clear that the other party does not care about damage caused to the opposing company. But, even if it remains a popular choice in practice, arbitration also has limits for international business players. The mixed results of arbitration for companies arise from a number of known factors that are common in court litigation but are even more relevant in arbitration proceedings: the length of proceedings, high external expenditures, a significant amount of internal work in coordination and case strategy, a controversial interpretation of international public laws rules, the risk of annulments, and a high risk of retaliation in the event or arbitration against a government, especially in investment arbitration. Disadvantages such as procedural complexity, legal challenges to jurisdiction or competence of proceedings, unpredictability and challenges to enforceability of decisions are not specific to arbitration.