The Relation Between Courts and Arbitration: Support or Hostility

Authors: Luca G. Radicati di Brozolo


In an ideal world mediation is almost invariably the preferable method for the settlement of disputes, even compared to arbitration. However, there are many situations where a settlement, whether as a result of mediation, of negotiations or by whatever other means, is simply not possible for a variety of objective or subjective reasons, and recourse to a traditional dispute settlement mechanism becomes unavoidable. Whatever the problems of arbitration in the vast majority of cases it is still the only viable dispute settlement mechanism for international transactions. The differences in State attitudes toward arbitration may lead States and their courts to engage in behaviors that other States, as well as practitioners and commentators who follow the more prevalent views on the law and practice of arbitration, may view as unjustified interferences with the arbitral process. Despite the crucial role of the New York Convention, arbitration is still not subject to a far reaching mandatory harmonization and remains unregulated at the international level. States accordingly retain a broad freedom to favor it but, conversely, also to treat it with distrust. This could leave arbitration in a state of anarchy. Nonetheless, over the past decades there has been a spontaneous evolution towards shared values and approaches in a large number of States. This has led to the emergence of a sort of common law of arbitration.