Is arbitration a barrier to the courts?

The New York Times' three investigative articles on arbitration practice in the US have caused substantial controversy over the past few days among alternative dispute resolution (ADR) practitioners, scholars, business owners, and the general public.

Published over the last two weeks, they paint a particularly negative picture of arbitration, portraying it as a mechanism manipulated by large companies to avoid the courts and deprive citizens of access to justice in the process.

The New York Times' articles have themselves been heavily criticised.

Some of the loudest criticisms have been voiced by the US Chamber Institute for Legal Reform (ILR) in the article 'Dog Bites Man: New York Times Prefers Lawyer-Controlled Class Actions over Fair Arbitration that Enables Individuals to Protect Themselves'.

The institute argues: 'This so-called "investigation" presents a biased, selective, and false picture of arbitration, ignores scholarly support for arbitration and omits the reality of class actions where lawyers benefit and consumers gain little or no benefit.'

These criticisms are well founded. Notwithstanding, the articles provide an opportunity for the Chartered Institute of Arbitrators (CIArb) to tackle misconceptions about arbitration head on.

CIArb director general, Anthony Abrahams, said: 'There are many advantages to arbitration - the process can be tailored to suit parties' particular needs, arbitrators can be chosen for their expertise, and it is also speedier than court. One of arbitration's greatest assets is that it is an inherently voluntary process which should always be overseen by neutral, impartial, and independent arbitrators. It should therefore never be treated, manipulated, or interpreted as a barrier to the courts.

'CIArb has always taken ADR standards very seriously. The practice and standards committee (PSC) of CIArb is responsible for creating a better standard of ADR practice worldwide. To support this aim, the committee develops and publishes guidelines of good practice, codes of ethics, and rules and procedures. This year CIArb also developed the CIArb London centenary principles for an effective, efficient, and "safe" seat in international arbitration.'

CIArb is a global professional membership organisation representing the interests of alternative dispute resolution practitioners worldwide

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