- Elgar original reference
Edited by Jan M. Smits
Chapter 6: Arbitration*
Arbitration is a process in which the parties agree to refer their disputes to one or more neutral persons (arbitrators) in lieu of the court system for judicial determination with a binding effect (Lew, Mistelis and Kröll, 2003, paras 1–5 et seq., with further definitions; Carbonneau, 2009, p. 1). This definition shows the hybrid nature of arbitration: it is contractual in origin, since it requires an agreement between the parties to submit their disputes to arbitration, but has judicial effects, as it results in a binding determination of a dispute having the same effect as a court decision. The binding and judgment-like nature of the final arbitral award distinguishes arbitration from other forms of alternative dispute resolution, such as mediation and all types of expert determination. At the same time it requires that the procedure complies with the minimum requirements of due process, including the need for an independent and impartial decisionmaking body. These different sources and requirements have given rise to different views as to the legal nature of arbitration (see for an overview on the various theories Born, 2009, pp. 184 et seq.). Originally, the issue was whether arbitration has a contractual, jurisdictional, or hybrid nature. Over the years the focus of the discussion has shifted to international arbitration and to what extent it is the subject of an autonomous legal order.
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