Browsing by Author "Forsius, Mats"

Arbitration has been critiziced for becoming slower and more like traditional court procedures. Even though arbitration still has an important role to play on the international dispute market, it is important to respond to the critique and try to keep up to date. This way arbitration can assure its position as favorable option also in the future. It is also important to keep arbitration as a real alternative to court litigation. The longer a procedure is drawn out, the more unpredictable the costs become. Speed and costs go hand in hand, and a lengthy procedure can produce really unforeseeable costs. The best way of controlling the costs of arbitration is by controlling the speed of the procedure. Besides, the obvious positive effects a speedier procedure can have on the direct costs, speed also has a value in itself. For any business, disputes are troublesome and should be dealt with as soon as possible. In this thesis, I try to respond to the critique aimed at arbitration, and come up with ideas on how it could become more efficient. I also analyze what impact accelerated procedures can have on the due process requirements of arbitration. In the end I also discuss whether or not there is a real need for more speed, or if expedition is actually overshadowed by a loss in quality. The big question is, can arbitration be accelerated without a drop in quality. A vast majority of the issues related to the speed of an arbitral procedure could be solved by better preparation. Not only should the party's prepare properly for a dispute on their own, they should also try to communicate and cooperate with each other. The preparatory stage, starting with the drafting of the arbitration clause, is as important for the arbitral tribunal and the arbitrators should be very aware of what they are getting in to, before the commencing of the arbitration. The better this clause reflects the actual thoughts and needs of the parties, the more likely it is that the arbitration is commenced in time. Unfortunately, the drafting of the arbitration clause is usually part of the negotiations of the main agreement and thus, not given the attention and time it would need. Too many disputes are drawn out because of ambiguous and unclear arbitration clauses. When the procedure is under way the importance of cooperation between parties and the tribunal is also highlighted. In order to use arbitration to its full potential, all the involved actors should work towards a common goal. The arbitration institutes and the legislator also have a saying in controlling the speed of arbitral proceedings. In this thesis I have come to the conclusion that the law should approach arbitration from a "less is more" perspective, and that the default rule should always be the simpler option. Hence, I suggest that disputes should be settled by a sole arbitrator as a default rule. Parties, who think that their disputes are likely to be to complex for one arbitrator to handle could easily choose to have a panel of three arbitrators instead. Now it is the other way around and most cases could in fact be solved by a sole arbitrator. A change of this rule would surely facilitate the procedure without giving in on its quality. Better cooperation between the arbitration institutions would ensure both speedier and more qualitative procedures. At the moment there is no international coherency and the term "expedited arbitration" has a very different meaning depending on the institute. The expedited rules of one institution offer time limits can for example be the same as the ones offered by another institution in their normal procedure. There are a lot of issues that could be improved in international arbitration. I still think that we should be wary and watch out not to get caught in the fast lane. There is more to arbitration than the speed of it, and the main focus should always be on its quality. That means both the quality of the procedure and that of the award. Sometimes it is good to take a step back and just reflect on things. Speed can, and often does, have a value in itself but without a qualitative award it means preciously little.