Commercial arbitration still underestimated

DGP has just published two articles on arbitration, both of which adopt a negative view of the institution (Andrzej Jankowski, “Arbitration not as fast and inexpensive as it would seem”, DGP, 14 December 2010, and an interview with Prof Stanisław Sołtysiński, “Arbitration is no longer inexpensive”, DGP, 29 December 2010).

Analysing the statements by Prof Stanisław Sołtysiński, one might arrive at the overall conclusion that arbitration is basically costly, time-consuming, overly formalised and less than confidential. Andrzej Jankowski, meanwhile, does not mince his words and declares flatly that “latter-day arbitration has fallen victim to its own adulation and myths – the myth of expedient, hassle-free dispute resolution, the myth of low costs, and the myth of highly competent arbitrators”.

I beg to differ. I am a declared fan of arbitration, and I regard it as a made-to-measure instrument for dispute resolution placed in the hands of us, lawyers and businesspeople. It is a fallacy to judge the efficiency or utility of commercial arbitration in reference to the same criteria as we would apply to adjudication by the general courts, based as it is on statute and leaving little room for negotiation. Arbitration proceedings are regulated by the parties themselves by way of contract, providing a broad selection of variants. But, in order to benefit from all the blessings of arbitration, one must dispose of basic knowledge on the subject. Here, I agree with A. Jankowski. Insufficient knowledge on the part of businesspeople leads them to neglect this form of amicable dispute resolution. But that’s just part of the picture. The other part, certainly sadder, is that representatives of the legal profession likewise fail to appreciate the possibilities offered by arbitration.