59 - Global Governance’s Inescapable Legitimacy Conundrum: A Call to Reform International Commercial Arbitration

Summary

The need to reform international commercial arbitration has to this day timidly–if not hardly–been acknowledged. The authors argue in this contribution that such timid inquiry has in any event been initiated for the wrong reasons. International commercial arbitration should not be reformed merely in response to the ongoing legitimacy crisis of international investment arbitration. To the contrary, time is ripe for a discussion about the general need for reform of international arbitration, as it has become the quasi-exclusive forum selected for the settlement of investment but also international commercial disputes. The disputing parties’ fundamental role in consenting to arbitration cannot exonerate any type of international arbitration from an inquiry as to the greater need for transparency and consistency of the arbitral decision-making process as well as accountability of arbitrators. Acknowledging the need for reform, however, does not imply submitting all types of arbitral dispute resolution to the Procrustean ISDS reform bed. Enhancing international commercial arbitration’s legitimacy inevitably requires tailor-made reform.