“Party Control in International Arbitration” Vol. 19 No. 2 Arbitration International (2003)


In international arbitration, parties often voice the concern that they have lost control of ‘their arbitration’. Frequently, this occurs when the parties disagree with the decision on the merits or when they have been surprised by the course of the procedure. They are irritated by the fact that this procedure may not be what they are used to in their country of origin. Some of this irritation is inevitable. Other elements can and should be reduced by addressing the parties’ procedural expectations in choosing the applicable arbitration rules and at an early stage of the proceedings when the parties do have control over the proceedings. Parties have opted for arbitration in preference to litigation in national courts in part because of the flexibility as compared to the dichotomy of national systems. By focusing on exactly what rules they are agreeing to, parties can ensure that they maintain basic control over the ground rules. After such rules have been chosen – and the dispute has arisen – the parties can best influence if not control the proceedings by focusing on the stage of proceedings and the possibilities at each stage. Clients are practical. They tend to understand that arbitration like any form of dispute resolution results in a gradual shifting of control away from the parties and to the tribunal for what is after all the adjudication of a dispute.