Although in 1975 the States participating in the Conference on Security and Cooperation in Europe vowed to increase mutual cooperation and recognized the importance of arbitration in this context, at the end of the eighties there was still a sharp dividing line between Eastern and Western arbitration practice. In this context, the terms 'eastern' and 'western' were of course misnomers, as they did not accurately reflect geographical reality. However, they were found to be a convenient way of referring to, respectively, the European member States of the Council for Mutual Economic Assistance (CMEA)-more commonly known as Comecon in the West-and the rest of Europe. For this reason they will be used in the present article too.

Much use was made of arbitration in Eastern Europe prior to the fall of the Iron Curtain, even though the Western world gave little heed to it. Indeed, in a number of CMEA countries arbitration had reached a high standard. Its roots lay in the organization of foreign trade in these countries. It may be said-cum grano salis- that in all CMEA countries there was what amounted to a foreign trade monopoly. In each country the entire foreign trade was carried out by a few tens of huge commoditybased foreign trade enterprises. The only way in which producers and service providers could engage in trade with foreign countries was through these foreign trade enterprises. In practice, the producers sold their production to the foreign trade enterprises and ordered any goods or services they needed from abroad through the same enterprises, which purchased the goods or services in foreign countries. It was in this way that all commodities, including oil, gas, electrical energy, food, machinery and services, were imported into and exported from CMEA countries. The foreign trade enterprises generally took the form of joint stock companies, so as to avoid any confusion between their property and that of the State and protect their property from any claims made against the State abroad. As such they differed from most legal entities in the domestic economy, which, as socalled national enterprises, did not have any property of their own, but merely administered the State property assigned to them. [Page457:]

Soon after the nationalization of foreign trade in those countries that were later to form the CMEA-and many years prior to the birth of the New York Convention in 1958-arbitration was recognized as an effective means of resolving foreign trade disputes. The idea gradually grew and arbitration thus became the standard method of settling disputes arising from foreign trade.

In most of their business transactions with enterprises in nonCMEA countries, the foreign trade enterprises used standard contracts and general business conditions and terms. These documents contained arbitration clauses referring to arbitration courts attached to chambers of commerce. 1 The foreign trade enterprises were such significant players in European-and sometimes even worldwide-trade and reputedly good payers that they were highly successful in asserting these arbitration clauses. In cases where they were unable to agree with their foreign partners on the choice of an arbitration court, they were encouraged by their respective foreign trade ministries to choose an alternative court that would be acceptable to both sides. Some, at least, of the arbitration courts in CMEA countries were known for their impartial decisionmaking. The Prague arbitration court was one of them. When I asked my elder colleagues in Prague how it was that even in politically unfavourable times (particularly the 1950s) the decisionmaking of the arbitration court was protected from political interference, their answer was surprisingly simple: when the political instances sought to encourage a national bias, the arbitrators responded that if they did not decide impartially nobody would agree on a clause assigning jurisdiction to the arbitration court in Prague and all the claims of the Czech foreign trade enterprises would have to be referred to the ordinary foreign courts, which would require considerable foreign currency resources. At a time when there was a shortage of foreign exchange, this argument worked well and-at least in Prague-the politicians left the arbitration court to decide alone.

In addition to the contractuallybased arbitration described above, there was what could be called 'obligatory arbitration', which had its basis in the unified commercial law in CMEA countries. This law was contained in several sets of general terms and conditions, such as those of 1968 relating to goods or those of 1973 relating to services. These conditions included dispute resolution provisions referring to arbitration. As far as jurisdiction was concerned, the rule was as follows: if the parties did not agree otherwise, the arbitration court attached to[Page458:]

the chamber of commerce in the country of the respondent had jurisdiction over any disputes, without any need for an arbitration clause; alternatively, the parties could agree that jurisdiction would lie with an arbitration court attached to the chamber of commerce of a third CMEA memberState or with a specialized arbitration court in a CMEA country, such as the Maritime Arbitration Commission in Moscow or the International Arbitration Court for Marine and Inland Navigation in Gdynia. The 1972 Moscow Convention extended the use of arbitration to all civil law disputes relating to economic, scientific and technical cooperation (thereby covering the overwhelming majority of all disputes within CMEA countries) and clearly regulated the system of enforcement of arbitral awards. Under this dispute resolution system, if the obligor did not pay in time and as required, a clearing operation was effected in the central register of a Moscow bank common to both parties, effectively ruling out the possibility of insolvency and bankruptcy.This system ultimately led to the Unified Rules for Arbitration Courts in the CMEA, which were well conceived and, if they are taken out of their political context, functioned satisfactorily. I speak from direct experience: as an expert I took part in discussions to improve the system, and as a lawyer I acted as arbitrator and counsel in foreign trade matters for almost fifteen years.

In this system, which operated within the context of a foreign trade monopoly and involved no more than a few hundred entities in all CMEA countries, arbitration-whether 'contractual' or 'obligatory'-was very informal, fast and cheap and in keeping with the traditional principles on which arbitration was based. It was not uncommon for matters-even the complex ones-to be decided after a single oral hearing lasting a few hours only. Arbitration fees were low; the parties did not seek to recover fees for legal representation because they were represented by inhouse counsel; and the fact that the participants well trained enabled the proceedings to progress quickly.

This welloiled arbitration system, involving well qualified and experienced lawyers as arbitrators and counsel, meant that little attention was paid to the frequently waspish comments of Western European colleagues often wishing to display their superiority.Also, routine and the fact that the majority of the lawyers engaged in foreign trade were in a better position than other lawyers in CMEA countries led to a degree of mental complacency. And the regular meetings of the representatives of arbitration courts in CMEA countries, which we lightheartedly referred to as turistica iuridica, further contributed to a feeling of ease and satisfaction. [Page459:]

There was never any doubt that the CMEA, with its seat in Moscow where lawyers from all CMEA countries worked, should play the leading role organizationally. However, the dominant role belonged to the Soviet lawyers. Although in all fairness it should be said that it was possible to express one's views in professional discussions, there was no similar democracy at an organizational level.

From the mid1980s, it was clear to most people who worked in foreign trade (including the arbitration courts) that a crash was imminent. However, they little suspected a crash so strong that even those who were prepared for it found themselves reaching for breath.

The CMEA system collapsed like a house of cards and after some time individual countries began to aspire for European Union membership. 2The principles on which obligatory arbitration functioned and the CMEA's leading role in coordinating it collapsed too. All the arbitration courts in former CMEA countries were faced with new challenges and problems. In Prague, for instance, the number of new disputes fell so dramatically from some 350 new disputes in the last years of the CMEA's existence to a mere 71 in 1996. Seen from 2004, by which time the total had risen to 598, this drop appears inconsequential, but at the time it was considered as a deep crisis endangering the entire economic existence of the arbitration court. We in Prague were ashamed of the situation and very much reserved; and because the regular meetings of the representatives of former CMEA arbitration courts ceased, as nobody had the willpower or financial resources to organize them, 3 we each thought we were the only ones in decline and that the others were continuing to thrive.

It was then that Robert Briner became Chairman of the ICC International Court of Arbitration in Paris. It should be said that the ICC Court had been playing a certain role in 'EastWest' arbitration previously, as there were working groups drawing up protocols that were subject to monitoring. However, Robert Briner's arrival at the helm gave activities not only a new professional but also a human dimension. Without realizing it, he built a new bridge over the troubled waters between arbitration in Eastern and Western Europe. The reasons are essentially threefold. [Page460:]

First, he amazingly and very selfevidently made use of the position and image of the ICC Court. Throughout Eastern Europe, the ICC Court was considered to be an unquestionable authority in the field of arbitration. When Robert Briner went around asking individual presidents of arbitration courts in former CMEA countries whether or not they thought that the ICC Court could help to revive the sessions of the European arbitration group, even in a changed context, his idea was met with great enthusiasm, as I have learned from my conversations with the presidents of other arbitration courts. Had the idea come from elsewhere, it would have had far less chance of success. Although people felt such professional meetings to be extremely important, no one from the arbitration courts of the former CMEA had the power or authority to organize them.

Second, Robert Briner stripped the sessions of their formalism. His rational attitude and human approach were essential to ensuring that discussions at meetings were conducted in a very free spirit and to the benefit of the issue in question. Also, the alternation of meetings at the headquarters of the ICC Court and in an Eastern European country helped to make sure that all participants became acquainted with the laws and practice of arbitration in various countries.

Third, he helped to overcome shyness. By arranging social programmes alongside working sessions, he encouraged the representatives of individual arbitration courts to share their new experiences. Thus, it has appeared that almost all arbitration courts from former CMEA countries were and are struggling with similar problems. The opportunity to discuss such problems and their solutions has led to better knowledge of the new situation and has also led the arbitration courts to resume bilateral discussions. 4

Through all this, Robert Briner not only helped to increase the prestige of the ICC Court in former CMEA countries but also stimulated the development of arbitration in EastWest relations and, it may be said, in Europe as a whole.

A propos, I have also known Robert Briner as husband (not mine, of course, but Frances'), arbitrator, nice companion in discussions, connoisseur of wines and good food, tourist and a person who is interested in many other things. And he was just charming, in all that. [Page461:]

1
Each country had one chamber of commerce. Although designated differently in different countries, these chambers of commerce all pursued a similar purpose.

2
I would add, in passing, that from a bureaucratic point of view, the CMEA was a liberal discussion club compared with the European Union.

3
Another reason was that no one wished to take the initiative of organizing further meetings, for fear of being branded a usurper or resuscitator of the CMEA.

4
The Prague arbitration court, for instance, recently visited colleagues in Budapest, Moscow and Zagreb, and will visit others later.