Suchergebnisse

Evidentiary rules employed in judicial proceedings are not strictly applied in international arbitration. Although this flexibility with regard to evidentiary matters is often considered a benefit of international arbitration, in certain situations it can lead to unpredictability and conflicts with national law. One such area is the application of evidentiary and testimonial privileges in international arbitration.1 There is very little authority addressing how international arbitrators should proceed when presented with a claim of privilege.

It has always been urged, both by sceptics and by believers, that the test of the practicability of international arbitration stands on the question of sanctions. And yet, by a striking inconsistency, the same authors who agree on the primordial importance of this problem have constantly failed to resolve it. In fact they have hardly ever attempted to explain its terms.In spite of my reluctance to quote my own work, I am obliged to say that the only book ever devoted to this one great problem was my comprehensive treatise on " Sanctions of International Arbitration," the French edition of which appeared in 1905, with a preface by Baron d'Estournelles de Constant. President Roosevelt, whose great energies and high statesmanship were then devoted both to the negotiations of the Peace of Portsmouth and to the preparation of the program of the Second Hague Conference, courteously permitted me to dedicate the book to him, and therefore I dare say that, though the study of all the great European authors who, since Grotius, have led the way to the present state of international law was my constant guide, I did not lack of American inspiration.

The popularity of arbitration as a mechanism for settling disputes between transnational contracting parties has led to standardization in many areas of arbitration law and procedure. One important aspect of the arbitral process, however, the practice of awarding compensatory interest, has been left behind in the march toward uniformity. To date, arbitral tribunals have failed to adopt a rational and uniform approach for evaluating interest claims. Consequently, resolving interest claims is often an expensive and time-consuming process, fraught with uncertainty, which typically results in inconsistent arbitral awards. This result is particularly problematic in the international arbitral arena: such claims often involve millions of dollars, and because a lengthy period may elapse between the origin of the dispute and the final award, whether an arbitrator awards interest may be as significant, from a monetary standpoint, as the principal claim itself.

The procedural aspects of international arbitration have largely been neglected. Tribunals are prone to borrow their rules of procedure from one another without considering their suitability for the particular arbitration at hand. Time rarely permits then to act otherwise in the hurry and pressure attendant upon the opening of an arbitration. Agents and counsel are anxiously preparing their cases and awaiting the opening of oral arguments. During the course of the arbitration the ever-nearing date fixed for its completion, the mounting expense of maintaining the staffs, and the burdens of other official duties awaiting the arbitrators and advocates upon the completion of their tasks all tend to discourage the deliberate consideration of procedural problems.Though the need for procedural reform was long ago recognized, the problem has received relatively little attention from writers.