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Rethinking International Commercial Arbitration

Towards Default Arbitration Gilles Cuniberti, Professor of Comparative and Private International Law, University of Luxembourg
Arbitration is the normal and preferred mode for resolving international commercial disputes. It presents an essential advantage over national courts by offering neutrality of adjudication, but is currently only available where both parties have consented to it. This innovative book proposes a fundamental rethink of this assumption and argues that arbitration should become the default mode of resolution in international commercial disputes.
Extent: c 256 pp
Hardback Price: $125.00 Web: $112.50
Publication Date: May 2017
ISBN: 978 1 78643 239 1
Availability: Not yet published (pre-order)
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  • Law - Academic
  • Arbitration and Dispute Resolution
  • International Commercial Law
  • Public International Law
Arbitration is the normal and preferred mode for resolving international commercial disputes. Its essential advantage over national courts is that it offers neutrality of adjudication, as each party avoids litigating in the court of origin of the other. Despite this unique and fundamental advantage, arbitration is only available where both parties have consented to it. This innovative book proposes a fundamental rethink of this assumption and argues that arbitration should become the default mode of resolution in international commercial disputes.

The book first discusses the most important arguments against this proposal and responds to them. In particular, it addresses the issue of the legitimacy of arbitrators and the compatibility of the idea with constitutional guarantees afforded by European human rights law and US constitutional law. The book then presents several models of non-consensual arbitration that could be implemented to afford neutral adjudication in disputes between parties originating from different jurisdictions to offer an additional alternative forum in the doctrine of forum non conveniens or to save judicial costs.

The first dedicated exploration into the groundbreaking concept of arbitration as a default mode of resolution of international commercial disputes, Rethinking International Commercial Arbitration will appeal to scholars, students and practitioners in arbitration and international litigation.
‘Arbitration is, for many reasons – one of which is neutrality – a more suitable mode of dispute resolution in an international context than litigation before a State court. Building on his seminal 2009 article, Professor Gilles Cuniberti implacably demonstrates that arbitration should be given the status of default mode, and systematically rebuts the conventional objections against such a revolutionary proposal. He does so with such talent and persuasive power that the initially skeptical, but open-minded, reader, after turning the last page, must honestly admit that Professor Cuniberti might well have convinced him.’
– Pierre Mayer, Emeritus Professor at the University of Paris-I Panthéon-Sorbonne, France

‘Cuniberti’s thought-provoking book elaborates on the concept of default arbitration which he was the first to propose in a 2009 article. The idea is that, in the international setting, arbitration should be the default mode of resolution of commercial disputes because it is superior to court litigation, particularly on account of its neutrality and flexibility. This shift of paradigm has been gaining traction, but remains controversial. Cuniberti’s well-argued analysis brings a welcome breath of fresh air to the debates on arbitration, which remain extremely deferential to acquired wisdom but often fail duly to consider the evolution in the reality of international commercial relations.’
– Luca G. Radicati di Brozolo, Catholic University of Milan, Italy

‘International commercial arbitration has of late attracted vast amounts of commentary, much of it merely advocacy in favor of or against the enterprise, and all too often polemical in nature. What the field has lacked is a truly penetrating and holistic study of the challenges facing the enterprise, both its workings and its connection with other international dispute resolution regimes. Into this gap comes Gilles Cuniberti’s masterful work which deserves the attention of anyone wanting to take international commercial arbitration seriously.’
– George A. Bermann, Columbia Law School, US

Contents: Part I Why Promote Arbitration 1. The Most Suitable Mode of Dispute Resolution Part II The Decline of Consent in Modern Arbitration 2. Foreign Investment Arbitration 3. Domain Name Arbitration 4. The French Experience Part III Policy Analysis 5. The Legitimacy of Private International Adjudication 6. The Public Functions of Courts Part IV Constitutional Constraints 7. European Law 8. The Constitution of the United States Part V Models of Default Arbitration 9. The Proposed Model 10. Variant 1: Arbitration as Forum Conveniens 11. Variant 2: Ending the Commercial Judicial Subsidy Part VI Implementation 12. Indirect Paths 13. Direct Paths Index