What is the most effective way of resolving international commercial disputes? Is it best to look for a decision which will be binding on the various parties whether they like it or not, and which can be enforced by legal sanctions if necessary? Or is it preferable to look for some way of bringing the parties together, some kind of negotiated settlement which, while it may not please either party entirely, will at least avoid too many injured feelings? In short, and by analogy with matrimonial disputes, when commercial men are at loggerheads, should they look for a marriage guidance counsellor or a divorce practitioner?

It may be helpful, first, to consider what remedies are available. If a binding decision is sought, one obvious answer is to have recourse to the ordinary courts of the land, particularly where (as with the English commercial court) they have shown themselves to be responsive to the needs of commercial men and capable of devising remedies, such as the Mareva injunction, which are swift and effective. But often litigation will not be the right answer. As well as being divisive, litigation can be slow and expensive. In addition, there are many countries where the judges lack commercial experience; moreover, proceedings in court are almost always public. Accordingly, it is not surprising that, throughout history, commercial men have sought alternative, and preferably private, methods of resolving their disputes.

One of the most successful and enduring methods has been arbitration. It is a private way of resolving disputes, but one which has public consequences. The award of an arbitral tribunal (resulting from the private deliberations of men or women privately appointed) is enforceable by legal action before the public courts, nationally—and internationally, under such treaties as the New York Convention of 1958, which has now been adopted by over 80 countries, including the major trading nations of the world. Is this the answer? Is international commercial arbitration the most effective way of resolving international commercial disputes? A somewhat qualified “yes” emerges from this publication by Euro Conferences, a high-powered collection of papers and talks on the theme of “International Commercial Arbitration for Today and Tomorrow”.

The affirmative case is that there is an increasing tendency for international commercial disputes to be referred to arbitration. New arbitration centres are springing up like mushrooms in different parts of the world; and new laws are being brought in to cater for arbitration. In much of Western Europe, this is done by the reform of existing laws, so as to provide for greater party autonomy. Elsewhere (and this includes Scotland!), it is being done more simply by adopting or adapting the Model Law on Arbitration which was formulated by UNCITRAL in June 1985 and recommended to Member States of the United Nations by a resolution of the General Assembly later that year.

What is the object of these new laws? Dr Julian Lew, one of the distinguished speakers reported here, refers to three major essentials of international arbitration; first, the existence of “an arbitration-friendly law”; secondly, ability to enforce the arbitral award under the New York Convention; and, thirdly, “the arbitration friendliness of the judges and the authorities in the enforcing country”. By “an arbitration-friendly law” is meant a law which gives the arbitral tribunal the maximum freedom and flexibility to conduct the arbitration in a way which is in the best interests of expedition and justice.