New fields of arbitration - Coggle Diagram
New fields of arbitration
The doctrine has often raised the question: is it still considered arbitration when a party has certainly concluded an arbitration agreement, but did not really have a choice other than to do so?
A typical example of arbitration based on an agreement contained in articles of association is arbitration before the Court of Arbitration for Sport (CAS)
In reality the problem in this context is less the circumstance that arbitration is based on articles of association, but rather the fact that the athletes who wish to participate in sport competitions, especially at a professional level, will not have any other choice than to adhere to the articles of association of a particular sport federation. In other words, it is again the problem of what I have called “induced” arbitration.
which seems to be of importance here is whether in the presence of an arbitration agreement it is really necessary to examine the circumstances in order to qualify arbitration as a consensual dispute resolution mechanism.
Andrea's Position: I do not think so.
Indeed, also in commercial arbitration there may be situations in which the examination of the circumstances would lead to the conclusion that consent is fictional
In the United States the courts consider that the economic supremacy of one of the
parties should be considered a quite normal circumstance
The question about qualification should only depend on the existence of what is considered the cornerstone of arbitration, i.e. an agreement to arbitrate, from the functions of which arbitration fulfils and from the way in which this is done (therefore, the meeting of minimal standards of due process).
Indeed, the importance of the expression “the circumstances of the purported consent” used by Paulsson, when speaking about the fact that consent in sport arbitration is fictional, is that it implies that the focus on consent is shifted from the question about the qualification of arbitration as a consensual dispute resolution mechanismto one of the validity of the arbitration agreement. With respect to the validity of arbitration agreements, Rigozzi has rightly observed that a tendency can be perceived to minimise the role of consent when looking at the validity of the arbitration agreement and considering the situations in which one party can legitimately force another party to accept arbitration
Arbitration based on international treaties
Consent to arbitration becomes
This type of arbitration is not based on an arbitration agreement between the parties, but on a legislative act imposing upon them that the dispute has to be resolved through arbitration
there is a growing tendency toward compulsory arbitration forms and also the phenomenon of using the word “arbitration” to label dispute resolution mechanisms which are not based on parties’ consent.
A “new field” where this evolution can well be seen is sport arbitration
Although here arbitration is not based on parties’ consent, there is no doubt that the jurisdictions of the States, whose law imposes recourse to arbitration in the field of sport, will consider these proceedings as true arbitrations.
Special type of arbitration
: Rubino-Sammartano's position.
In the doctrine the view has been expressed that as far as
the law gives freedom to the parties to nominate their arbitrators and decide about the procedure to be applied in the course of the proceeding
, compulsory arbitration represents a special type of arbitration.
In order to back this view, it has also been argued that by rendering compulsory arbitration in a particular domain the State includes in some way this type of arbitration in the application field of the law of
. Jarrosson's position