Originally from Carbonneau on International Arbitration: Collected Essays

PREVIEW

The chapters of this volume represent the majority of my scholarly writings on the subject of international commercial arbitration (ICA).  They reflect my interest over the course of thirty years of law-teaching in international litigation, comparative law, and—of course—arbitration.  Some of the chapters are of a recent vintage, while others were written a decade or two ago. Whatever their date of production, the chapters have a continuing professional interest.  Each of them addresses some of the major issues of transborder arbitration law.

Arbitration best explains the need for effective international litigation and the value of uniform global regulatory frameworks. Since the end of WWII, ICA has been a source of genuine transnational understanding and cooperation even in circumstances in which law and culture clash.  It provides the order and stability that are indispensable to the operation of the international marketplace.

From the age of Goldman, Robert, Mann, and Lalive to the rise of de Vries, Smit, Lowenfeld, and Fouchard, ICA is now part of the regular business practice of major law firms, like Freshfields, White & Case, Baker & McKenzie, and Clifford Chance, and consumes the energies of many young lawyers. There are several peer-reviewed journals—for example, the American Review of International Arbitration—and both McGill and Queen Mary have programs of systematic instruction in the field.

My interest in ICA began when it became evident that the arbitral process was an effective means of reconciling the differences between legal systems. Transborder commerce could not take place in the midst of systemic conflict between legal traditions.  Commercial prosperity has always provided the most enduring form of social peace.  Differences in due process concepts should not be allowed to thwart global civilization.  Additionally, adversarial adjudication and its would-be commitment to rights protection should not be permitted to block the building of a functional global marketplace. Adversarial lawyering may be suitable for criminal prosecutions, but it is excessive, too costly, and dysfunctional in the civil context. Arbitration represents a pragmatic and workable accommodation of rights protection and procedural viability.  Its ethic of functionality remedies some of the failures of political conflict and adversarial proceedings.  In arbitration, basic fairness can prevail without undoing the backbone of civilization.