Article by Hans Smit
International commercial arbitration is growing by leaps and bounds. Both institutional and ad hoc arbitrations are proliferating. In these arbitrations, the tribunals are most frequently composed of arbitrators from different countries with different legal training, background, and experience. The lawyers handling the cases before these international tribunals are also different from those appearing before domestic tribunals. They not only practice before the courts of their own countries, but, increasingly, they are likely to possess experience in processing cases before international, arbitral tribunals.
Indeed, arbitrators are likely to be selected from a rather limited group, especially in the more important cases. The institutions appoint them because, quite properly and understandably, they wish to appoint persons with proven track records. Similarly, the parties prefer to appoint arbitrators about whose performance information can be gained. The usual selection process, under which each party appoints an arbitrator and the two party-appointed arbitrators or an institution select the chairman, permits the institutions and the parties to take these factors into account.
These developments have had a marked effect on the law practiced in international arbitral tribunals, both on the procedural and the substantive law level. Unfortunately, since most proceedings before, and awards rendered by, international arbitral tribunals remain unreported, much of what has been happening is neither generally known nor accessible to the legal profession at large. As a consequence, this Article reflects in large measure my personal experiences as an international arbitrator.
About the Author
Hans Smit. Stanley H. Fuld Professor of Law and Director, Parker School of Foreign and Comparative Law, Columbia University.
Citation
65 Tul. L. Rev. 1309 (1991)