This symposium submission draws heavily on law and economic literature to develop its thesis. Part I lays out the literature behind the parties' choice to opt for arbitration. It also builds upon that literature by attempting to sketch out some preliminary reasons why parties might opt for arbitration over another form of dispute resolution. Part II charts how, along various axes, arbitration has begun to converge with litigation - thereby depriving it of a comparative advantage that it once enjoyed - due to innovations in arbitration and innovations in the field of international civil litigation. In brief, the traditional advantages enjoyed by arbitration - enforceable agreements and awards - are waning as the international legal architecture governing jurisdiction, forum selection clauses, and the enforcement of foreign judgments begins to catch up. Part III identifies present or future areas where arbitration, as a form of dispute resolution, can continue to enjoy a comparative advantage and remain on a surer, more competitive footing in the future. In the long run, the comparative advantages enjoyed by arbitration generally will not lie with enforceability issues but with choice-of-law issues. Unconventional sources like state arbitration laws and regional conventions will play an important role in this effort.
Convergence and Divergence in International Dispute Resolution Symposium,
2012 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol2012/iss1/4