Drawing on the literature, two strands help to frame this paper. The first concerns why parties choose to arbitrate. The second strand is the literature documenting the efforts within the arbitration industry to encourage the use of arbitraments.
My goal in this paper is to bridge a gap between this second strand and the first, more theoretical strand. What is missing from both strands is a concrete, system-wide understanding about why parties opt for arbitration as opposed to other forms of dispute resolution. In other words, I seek both to give concrete understanding to the theoretical model articulated in the Shavell-Hylton strand of literature and, at the same time, move up a level of abstraction from the countryspecific analysis of what makes a particular nation a desirable forum, to the more generic question of what makes arbitration a desirable form of dispute resolution. The question that interests me, therefore, is whether we can move beyond these examples of inter-jurisdictional competition over the business of arbitration to broader issues of inter-systemic competition over the business of disputes generally. In other words, are there ways in which arbitration systemically differentiates itself from litigation as a preferred form of dispute resolution in much the same way that Belgium or Singapore distinguishes itself as an arbitral forum?
Peter B. Rutledge,
Convergence and Divergence in International Dispute Resolution Symposium
, 2012 J. Disp. Resol. 49
Available at: http://digitalcommons.law.uga.edu/fac_artchop/911