Originally from the Leading Arbitrators' Guide to International Arbitration - Fourth Edition

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I. INTRODUCTION

While international commercial arbitration has many virtues which have been realized repeatedly over the years, in some cases, costs and inefficiencies have exceeded both expected and actual rewards.

Ambrose Bierce has described litigation as “a machine which you go into as a pig and come out as a sausage.”  Experience shows it is not a long stretch to define some international arbitration procedures in the same manner. Why?

In complex, commercial international arbitration, it is not unusual for counsel to take control of the proceedings which, in some cases, leads to a significant increase in time and cost. Every dispute, whether in a national court or in arbitration, focuses on past misdeeds, sometimes to the detriment of a potential settlement or even, in some cases, a constructive future relationship. 

The pathology of the process often polarizes parties, to say nothing of depleting resources. Business people, lawyers, and arbitrators are frequently sensitive to this dynamic. We explore here what parties and their counsel, sometimes with the encouragement or even the participation of the arbitrators, can do about resolving their differences short of time-consuming and resource-depleting adversarial arbitral proceedings. We look at the possibilities offered by the ADR spectrum, whether or not any can be used in international commercial arbitration, how and under what circumstances, and with what expected results.