Reflections on the State and Future of Commercial Arbitration:

Challenges, Opportunities, Proposals

by: Thomas Stipanowich
Pepperdine University School of Law

Commercial arbitration systems addressing business disputes are in a process of dynamic evolution that presents distinct challenges as well as manifold opportunities for business users and for those who provide services as counselors, advocates, arbitrators and institutional arbitration providers. At the invitation of the College of Commercial Arbitrators, Professor Stipanowich prepared this assessment of the current «state» of commercial arbitration as experienced and perceived in the United States and internationally, a consideration of apparent barriers to the use of arbitration and countervailing opportunities for tailoring arbitration to serve business goals, and prospects for the future of arbitration — and arbitrators — in an increasingly globalized and technology-driven world. Drawing on data from the first broad-based survey of experienced arbitrators, conducted in 2013 by the Straus Institute, and other empirical studies, this article offers new information and insights on many different aspects of commercial arbitration practice in the U.S. and in international disputes. Topics include the habits and attitudes of business users and their attorneys, and barriers to making effective choices regarding arbitration; standards for arbitrator decision making and methods of managing perceived risks in arbitration; the variety of proactive approaches now employed to promote economy and efficiency in arbitration; issues of diversity in arbitration tribunals (including the gender and the professional background of arbitrators); party-appointed arbitrators on tripartite panels; the dramatic growth in the ranks of self-described «dispute resolution professionals»; the education, training and credentialing of arbitrators; legal advocacy in arbitration; arbitrators and settlement; the impact of mediation on arbitration and arbitrators; the growing emphasis on early evaluation or case assessment; the impact of technology; and the insights drawn from behavioral science and «big data.»

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