Too Early to Decide? An Examination of Dispositive Motions in International Arbitration

Abstract

Arbitration as a form of dispute resolution for international commercial matters has long been hailed as advantageous as compared to litigation. There are numerous claimed benefits, including enforceability of awards and finality of decisions; along with procedural flexibility, efficiency and cost effectiveness. Despite these claimed benefits there has been a persistent voice in legal scholarship bemoaning that the attractiveness of arbitration over litigation has been eroded. This voice claims that arbitration proceedings have been complicated by litigation-type processes such as multiple rounds of complex and lengthy submissions, document production, and protracted hearings. One consequence arising from this phenomenon has been a perceived decrease in the efficiency of arbitration and an associated increase in the cost of taking a dispute through arbitration.In short, it has been claimed that arbitration is becoming more like litigation and ‘judicialized’.