Kröll, Stefan M. --- "Arbitration" [2006] ELECD 157; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 6

Section Title: Arbitration

Author(s): Kröll, Stefan M.

Number of pages: 13

Extract:

6 Arbitration*
Stefan M. Kröll


1 Definition and types of arbitration
Arbitration is a process in which the parties agree to refer their disputes to
one or more neutral persons (arbitrators) in lieu of the court system for
judicial determination with a binding effect (Lew, Mistelis and Kröll, 2003,
paras 1­5 et seq., with further definitions; Carbonneau, 2004, p. 5). This
definition shows the hybrid nature of arbitration: it is contractual in origin,
since it requires an agreement between the parties to submit their disputes
to arbitration, but has judicial effects, as it results in a binding determina-
tion of a dispute having the same effect as a court decision. The binding
and judgment-like nature of the final arbitral award distinguishes arbitra-
tion from other forms of alternative dispute resolution, such as mediation
and all types of expert determination.
Depending on the parties and the nature of the dispute, one can distin-
guish different types of arbitration, each of which have particular features
despite their common basic structure: states arbitration, investment arbi-
tration between a host state and an investor, consumer arbitration involv-
ing at least one party which is a consumer, and statutory arbitration, where
the jurisdiction of the tribunal is not based on an agreement between the
parties but on statute. Since the most frequent use of arbitration is in the
field of commercial disputes, this exposé concentrates on commercial arbi-
tration unless explicitly stated otherwise.
In commercial arbitration a distinction must be made ...