The European & Middle Eastern Arbitration Review 2008

Section 1: Introduction

Preface

Pierre Tercier

Chairman of the International Court of Arbitration of the International Chamber of Commerce

It is certainly not an original statement to say that after a number of years, international commercial arbitration has developed in a way that no one could have imagined. Although in the past 50 years it has developed progressively in the West, more recently it has seen an extraordinary expansion across the globe. Indeed, last year at the ICC International Court of Arbitration, parties involved in ICC cases came from 125 different countries around the world.
This phenomenon is not surprising, since it is largely connected to the internationalisation of the marketplace. As business exchanges multiply between different parts of the world, parties will inevitably seek mechanisms to resolve their disputes on a neutral basis, founded on general commercial principles accepted by the international business community. As such, the globalisation of trade brings about the globalisation of the different mechanisms of dispute resolution.
The development of arbitration has been intensified by the eminent role that the New York Convention has played in the recognition and enforcement of arbitration awards. This convention, which will celebrate its 50th anniversary next year, was a highly innovative and exceptional text, since it leads to the acceptance by all signatory states of the enforceability of arbitration awards, whatever their jurisdiction of origin. Thus, the globalisation of arbitration has already been carried out by the globalisation of the international arbitration system.
It is natural that this phenomenon is developing in parallel to the development of the global economy. Indeed, as the different parts of the world become more directly interconnected, they are concomitantly becoming more fully involved as actors in the arbitration world.
This is clearly the case for the Arab world, whose economy in recent years has gained considerable importance. In this region, people resort to arbitration naturally, because this method of dispute resolution has existed and been accepted practice for centuries, according to local tradition. In international commercial arbitration, the objective has remained the same and the setting is identical, even if the style and parties must adapt slightly. Today, the Arab world is manifestly in a choice position with respect to international commercial arbitration. It can only be hoped that this will continue, and that the actors in the region involved in this field will play an increasingly eminent role in so-called alternative dispute resolution mechanisms, which have also developed according to local custom.
The ICC International Court of Arbitration, of which I am honoured to be chairman, is extremely encouraged by recent developments in the Arab world. Moreover, the ICC Court is engaging in redoubled efforts to further improve relationships established with the various actors in this region, whether they are companies, counsel or institutions. In a symbolic manner, my first trip abroad, following my taking of office as chairman, was in the Arab world. Since then, the ICC Court has participated in an extensive number of conferences and events aimed at improving dialogue and confidence in this region. For it is exactly these two terms, ‘dialogue’ and ‘confidence’, that are essential:
• Dialogue – Tolerance is the first necessary condition for developing dispute resolution mechanisms in the best spirit and with the authority and force needed. It is imperative that one does not impose one’s principles, methods and values on another; to the contrary, one must, without abandoning anything that one considers essential, listen; listen in order to truly understand. Only the establishment of a truly open dialogue can result in the attainment of this objective. At this point, it has been established and developed, but it must now be further pursued and improved.
• Confidence – This is the second key word. In order to develop a common system, acceptable to and agreed upon by everyone, one must establish a true relationship of confidence. Despite their undeniable qualities, state tribunals cannot fully satisfy this need, since each party in an international dispute has a tendency to consider that the jurisdiction of the other party will favour such other party. By its very nature, arbitration offers a neutral platform: each party must be able to place its confidence not in a state structure, as well established as it may be, but in chosen individuals who have the practical experience, requisite knowledge and needed wisdom to render true justice. Arbitration institutions can play a key role in the arbitral process at many stages, such as nominating arbitrators, deciding challenges and replacements, as well as overseeing the financial aspects of the case. The ICC Court is widely known to provide great assistance during the course of the procedure. Moreover, all ICC awards are submitted for scrutiny and approval by the ICC Court, which is an additional protection for the parties involved. All this allows arbitration to be the fruit of confidence.

The most heartening phenomenon is, without doubt, the fact that one can observe the growth of the diversity of the actors in the field of arbitration. Indeed, the circle of professionals involved never ceases to expand. The ICC’s statistics have demonstrated this fact year after year. What may have been considered a ‘private club’ only a few years ago, is now becoming more of a community, open to all those who manifest an interest to join and who possess the necessary aptitude and capabilities.
The acquisition of these capabilities assumes a considerable amount of education. One cannot improvise arbitration; it is not sufficient to be a judge, a lawyer or a professor in order to act as an arbitrator without further, complementary steps. The field of arbitration demands specialised training. One can only be gladdened that so many efforts have been made to develop training and education in international commercial arbitration for lawyers, and especially for those that are early in their career. It is necessary that the younger generation fully find its place, which can – and should – belong to it. Everyone, universities in particular, but also institutions must assume their role in this task. The ICC International Court of Arbitration is fully conscious of its responsibilities and is dedicated to carrying them out with all possible means.

Chairman of the International Court of Arbitration of the International Chamber of Commerce

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