Introduction

Despite the various crises over the past few years, the world's economy as a whole has continued to grow at a sustained rate. Naturally this is a global assessment; the results differ from country to country, and indeed some have made no progress at all. World trade, for its part, has expanded strongly for the second consecutive year. According to certain international organisations, it increased in 1995 by more than 8% while the combined value of cross-border trade in goods and services increased by more than 17%, raising to US$ 6,000 billion. Following a pattern evident since the beginning of this decade, the expansion of world trade exceeded by a wide margin the expansion of world merchandise and services output. This simple observation leads to the conclusion that in most countries, foreign trade is becoming more important than domestic consumption. Not only are these activities growing in volume, they are also improving in quality since there is diversification in the products and services traded. They are becoming more advanced and acquiring a greater technical and merchantable value.

The source of this whole movement does not derive merely from developments in science and technology, communications, transport and transmission facilities and the spread and exploitation of information, but also from the increasing number of major development projects. These involve contributions from a variety of countries, particularly at the financial and technical levels, and entail the conclusion of complex contracts between firms of different types. Such contracts often involve national enterprises or govern agencies, or even states themselves.

Need for legal security

One observation remains a matter for concern: the fact that the expansion of international commercial transactions is threatened by legal shortcomings or uncertainty, whereas legal security would seem to be particularly necessary. This situation is due to the current state of international society. Indeed, it does not provide business circles with a consistent international trade law, with appropriate courts for resolving disputes or even simple procedural rules for the operation of business. This problem is also due to the crisis in the courts in many countries, where firms are reluctant to resort to them – deeming them to have little expertise and to be too slow – and where the state adds to the legal uncertainty by too often changing the legislation for political or budgetary reasons. Clearly, all such uncertainties are detrimental to trade and to investments.

In the face of this situation, firms have sought to respond by drafting contractual stipulations which formulate the rule of law and provide a new approach to dispute settlement. For example, practitioners have proposed alternative methods for resolving commercial conflicts by means of negotiation, mediation and conciliation. These procedures deserve to be studied and improved. The International Chamber of Commerce has applied them itself in the form of its Rules of Conciliation. In the United States, mediation methods are taught in conjunction with law, trade, communication, diplomacy, and little by little ethical rules for conciliation are being drafted, since when it culminates in an out-of-court settlement conciliation may become legally binding.

However, such efforts do not always produce the tangible results one might hope for, even in those countries where court proceedings are not highly regarded. Indeed, the amicable settlement of disputes will not, within a reasonable length of time, provide the parties concerned with a final reasoned decision governing the points of law which led to the dispute. Moreover, agreed settlements or compromise solutions cannot constitute legal precedents or enable the drafting of standards which can be used as a basis for subsequent analysis. If no provision was made for such solutions when the contract was signed, certain parties may well reject them. This is particularly the case in relation to complex disputes relating to multi-party contracts, or where boards of directors or company executives fear that they might be sued for failing to supervise the company's negotiating team. In addition, as a general rule, such methods are not acceptable for international organisations whose administration has to comply with strict financial and accounting rules, under government supervision. In any case, even organised negotiation, conciliation or mediation procedures do not provide the parties to the case with a decision fulfilling the conditions of international law relating to compulsory enforcement under the supervision of the national courts. In sum, dependent on the activity of firms of lawyers and the good will of the various parties, such compromise arrangements often take a long time to construct and are difficult to have applied.

On the other hand, one of the characteristics of arbitration is that it provides the parties to the dispute, who have contractually agreed to resort to arbitration, with a decision which has a legal and final character, with res judicata authority. Indeed, the legal concept of arbitration is now established. Pursuant to the contracting parties' express agreement, the task of settling any dispute that may arise between them is entrusted to people who are chosen on the basis of their skill and their independence. Hence, its basis is consensual, even though its outcome has a judicial character. In this sense, the arbitral award can be distinguished from minutes of conciliation, negotiated arrangements, expertise reports, set-off arrangements between insurance companies, out­ of-court settlements, compromise arrangements or mini-trials. A major feature in the classic arbitration award is the fact that the law is applied, whereas in the case of amiable composition - which is much less common - the arbitrator has wider powers, and in particular the capacity not to apply the law as he finds it and to make his decision reflect considerations of equity and good sense.

The pragmatic development of arbitration

The field of commercial arbitration has been gradually extended through use. By definition, it concerns disputes relating to property whose subject-matter can be valued in monetary terms, whether they are contractual or possibly quasi­ tortious. In principle, at least, arbitrations cannot involve questions of a criminal or fiscal nature, issues relating to the civil condition and status of individuals or, in many legal systems, real estate. One modern trend in legal and judicial practice is to reduce the range of subjects that cannot be submitted to arbitration by extending the notion of international trade to every activity which - although it may not involve any cross-border movement - concerns parties of different nationalities, has an impact on international interests or transfers, or applies a foreign law. Thus public authorities - states as well as the agencies or entities under their aegis - may be called, or even constrained, to take part in arbitrations to the extent that they operate in the context of international development, trade or financing contracts, and provided these contracts contain a valid arbitration clause.

The development of arbitration in relation to international commercial transactions is on the same scale as the increase in international trade. However, it is very difficult to assess accurately. Not only is it impossible to compile statistical records of the number of clauses concluded in all sorts of contracts where no dispute has as yet arisen; but when a dispute does arise, it will very often remain confidential, hence it will not be included in any figures. Moreover, several years may elapse between the signature of a contract and the commencement of proceedings. Hence, despite the endeavours and publications of qualified practitioners, it is quite difficult to develop a general academic view of international commercial arbitration. This difficulty is compounded by the amazing cultural, political and economic variety and complexity of the international community.

Indeed, arbitration is constantly becoming more international as time goes by. At the ICC, the number of countries represented in arbitrations was exactly one hundred in 1994 whereas 70 nationalities were represented ten years earlier.

In particular we have seen significant percentages of claimant or defendant companies from America, Asia and the Pacific, the Arab world and central or eastern Europe. The disputes involve private, semi-public and public companies. Today it can be stated that every major company operating on the international stage has been involved in at least one arbitration case to be decided before one or other of the institutions operating in this field, or by means of an ad hoe procedure. International arbitration is thus an expanding discipline, embracing an increasing number of contracts, but it is always managed pragmatically, on the basis of the will of the parties involved - a will that is expressed when the contract is concluded and subsequently throughout the whole course of its performance.

Hence, the special characteristic of arbitration is that it is a creation born of empiricism and necessity. It is instituted by the will of the parties concerned and operates largely pragmatically by being adapted to the needs of each firm in a changing and individual manner, according to conditions and stipulations resulting from the mutual consent expressed in each individual contract. It is a pro-active, dynamic activity, where the needs of a vast and changing world are more important than any vague impulse of academics and where highly qualified lawyers - particularly corporate counsel, barristers and university professors - use their imagination. Under these circumstances, does a general policy of arbitration exist, or can it? Is not merely raising the question audacious, or even foolhardy, since we know that this activity is evolving, that it derives from flexibility and innovation - particularly on the part of panels of arbitrators - and that it is impossible to pin the issue down or define any category in advance, and that it has to be specifically adapted to the stipulations of each individual contract? This is particularly the case now that states are enacting and amending laws in the field of arbitration that differ considerably from one to the other, despite the effective impact in this field of the works of UNCITRAL, whose Model law has been the inspiration for numerous national reforms. And lastly, despite the ambivalent attitudes of the national courts towards arbitral procedures that are outside their jurisdiction. The task seems all the more audacious in that there are thousands of individuals who act as arbitrators, originating from every country and all professional sectors.

The need for an arbitration policy

It seems that there is a duty to ask the question today. Indeed, in both the domestic and international sectors, the expansion of arbitration is so extraordinary that everywhere it calls into question the national courts – understood to be the expression of national sovereignty - while respecting the state's acknowledged right to exercise collective constraint in society. So far as private companies are concerned, both those operating internationally and many whose activities are limited to the domestic sector, are nowadays constrained to envisage a specific approach to the settlement of disputes that may arise in the course of their activities and whose stakes are often substantial. Law firms too are led to concern themselves with this question owing to their ever-vigilant presence in international commercial circles. International and European organisations are bound to consider this question, and indeed the United Nations has done so through the works of UNCITRAL and in the context of the decade of international law, as has the EEC, for example in the application of certain financing conventions.

An arbitration policy can also be justified by everything that this activity represents in the world of business: a major activity, and one that is difficult to provide, but which even inter-state relationships sometimes depend on. In certain cases, the poor administration of private litigation leads to disputes between governments, each of which considers it should take a stand in favour of its own development projects and in defence of its private companies, and in addition, as a representative of public opinion, with an eye to economic or social repercussions. It should also be pointed out that each institution that administers arbitrations has obligations towards the parties who have selected it for this purpose. Its obligations of vigilance, impartiality and effectiveness start from the very moment that the procedure commences and impel it to regulate its intervention, where applicable under the supervision of the relevant national courts. In this connection, if a dispute arises implicating the arbitrators' liability, this will call for a harmonised response in principle to problems resulting from serious deviation from a contractual or professional obligation, serious misconduct involving corruption, fraud, tort, or even perhaps under certain laws, negligence or delay.

Ad hoc arbitration, organised by the parties for a given case or on the occasion of a particular dispute, which is generally confidential, does not lend itself to academic research. In the field of arbitration, the only possible means of deriving general principles based on experience is to refer to the practice of certain institutions set up with a view to administering and organising international arbitration procedures.

A particular example is the ICC International Court of Arbitration, one of the oldest and most important institutions in this field, from the standpoint of the number of cases and their importance. Indeed, since its institution in 1923, the Court has dealt with more than 9,000 cases, and it now receives over 400 requests a year. At present some 850 cases are pending, with total stakes of more than 20 billion dollars to be decided. A definition of certain current trends in arbitration can be obtained on the basis of the experience of both the Court and its secretariat.

Over the years, the International Chamber of Commerce has drafted and revised Rules of conciliation and arbitration and thus contributed to the development of international commercial business on an ongoing and impartial basis. As an organisation under private law, completely independent of governments, through its national committees or direct members, it groups business communities from some 130 countries. One of its branches, the International Court of Arbitration, is comprised of members from more than fifty countries with a wide variety of professional backgrounds: professors, former judges, legal counsel, barristers, skilled specialists chosen by chambers of commerce or national professional organisations, without any state intervention. Led by its officers, who include representatives from every continent, the Court is in a position to approach the general problems of arbitration impartially from the intellectual, financial and political standpoints; in any case, this is one of the principal tasks of its chairman.

One current trend in arbitration is the increase in the number of centres offering to administer procedures. This does not facilitate the establishment of a concept of general policy in this field, as many institutions have followed the International Chamber of Commerce's example. Some of them were created for the needs of international trade at the outset, whereas others were devised for domestic purposes but their jurisdiction has been extended to foreign activities. There are about 100 institutions of this type in existence, but some of them are either inactive or devoted solely to domestic arbitration. Criticisms have been levelled at the fact that there are so many of these centres, but this situation results both from the very success of arbitration and from the cultural variety of the world. The fact remains that in this field, as in any other, competition is stimulating. It is desirable that companies remain free to choose, in mutual agreement, the particular rules to be applied to any dispute that may arise, and that each institution should be encouraged to operate in optimum conditions of cost-effectiveness, while applying the general principles of law.

A further issue to be raised with regard to a general policy of international commercial arbitration is the trend towards regulation. Although at present it is difficult to envisage the adoption of an international code of arbitral procedure, the rules drafted by the International Chamber of Commerce have been used as a model by numerous other institutions. Other efforts have been deployed, for example in the context of ICSID or WIPO. In this connection, as a general rule, a distinction has to be drawn between those clauses in a set of arbitration rules that are mandatory and those that the parties may mutually agree to waive. Often there is a tendency to impose regulations on international arbitration, and arbitrators need to be aware of these. They could be said to constitute elements of general policy. Paradoxically, the existence of rules - provided they can be freely interpreted and applied by an institution with a permanent working structure - offers more flexibility to arbitration than contractual stipulations that the parties may not depart from without mutual agreement. For example, procedures for checking the independence of arbitrators lead to a reduction in the number of challenges and the tendency for such challenges to fail. Moreover, a set of arbitration rules and an institution that ensures they are complied with enables practice in the field of organisational and procedural decisions to be harmonised, and such decisions are essential to the progress of cases where there is lack of good faith or confidence between the parties.

I· Policy-making concerning rules of procedure

The first question is whether there can be a policy of arbitration considered as a system of services of a contractual nature. If so, it would be desirable for it to be the best one possible because it is costly in terms of effort and finances. To this end it is essential for it to be rendered correctly and impartially, particularly at the international level for the development of international arbitration goes hand in hand with an increasing need for good faith in world trade.

A. Multiplicity of agents influencing the arbitral process

International contracts are extremely varied in subject-matter, content and form. It is difficult to draw up a catalogue of typical contracts, particularly because of the large number of parties involved. It should also be pointed out that there has been a significant increase in the number of multi-party operations. Today, a substantial proportion of requests for arbitration submitted to the ICC involve transactions of this kind. Disputes of this type often raise delicate issues and will probably lead to a noticeable change in arbitration practices; administration of such cases will call for a great deal of care. In this area, to proceed in the context of ad hoc arbitrations will be very difficult hence it is advisable to take care that the various contractual clauses are harmonised. The coordination of the solutions to such specific problems will also contribute to defining the lines of a general policy.

Another means of ascertaining the development of arbitration is by looking at the cases themselves. The situation at the ICC International Court of Arbitration can be used as a means of casting light on the whole issue. First of all, we have seen a constant increase in the complexity of cases and the amounts at stake. Cases concern tens or even hundreds of millions of dollars are not uncommon - some involve several billions. Moreover, it is quite noticeable that classic arbitration cases stemming from supply, sale, or construction contracts now account for only about half of the cases submitted to the ICC. We are seeing many cases involving different matters: industrial property, transfers of technology, data-processing, banking, corporate mergers, joint ventures, etc. Some of the most complex cases in international arbitration are in the most pro-active sectors of the economy and have the highest stakes. As arbitration progresses, the repercussions of a variety of difficult issues arise. At the same time, there is a trend towards the dispersion of procedures. At present arbitrations under ICC auspices are being held in some forty different places around the world, generally determined by the parties' wishes. Some sixty different nationalities are represented in ICC arbitral tribunals. Thus the ICC is administering a system which is increasingly varied, which accordingly gives rise to many problems of coordination, effectiveness and law.

Another trend that should be highlighted because it complicates the drafting and application of a general policy, is the increasing role played by the parties and their lawyers in the organization of arbitrations. Law firms, corporate lawyers and state legal officers are ever more highly qualified, and have an increasingly sharp perception of what arbitral procedure is; hence they introduce more and more elements inspired by court proceedings. This influence is exercised in the choice of language and the place of arbitration - a choice which introduces a factor of risk - particularly when it is a matter of determining the law applicable to the procedure. The will of the parties also plays a part with regard to the composition of the tribunal, the choice of the arbitrators, or even the chairmen of arbitral tribunals. It is noted too that companies are increasingly using lawyers for preparing their contracts and these contracts increasingly often contain clauses specifying the law applicable to any disputes.

The aim of any arbitration policy must be to ensure its progress and success. This is not always easy. In a field that is so competitive, the implementation of a policy of quality implies various disciplines, particularly in the organisation and operation of arbitration centres - the institutions that are responsible for the good conduct of the procedure. Indeed, while nobody can know the exact characteristics and outcome of ad hoe arbitration cases, institutional arbitration raises issues that can be divided into categories. A first stage of its activity can easily be identified: the constitution of the arbitral tribunal in accordance with conditions that will ensure the satisfactory and impartial administration of justice. Even at this stage there is clear evidence of protagonists' combativeness: challenge of the arbitrators, arguments about their impartiality, calling into question of the place and language of the arbitration and the tribunal's working conditions. The arbitrators have to administer the next stage of the procedure very carefully because it can give rise to various manoeuvres: obstruction, challenge, procedural and substantive obstacles, referral to the national courts, problems with holding meetings when one of the arbitrators is of bad faith, extraordinary and sometimes inexplicable delays, growing numbers of dissenting opinions, confusion in pleadings and decisions, challenge of the deliberations, during the procedure or subsequently. Lawyers are skillful and intelligent in this environment: many use such matters as convenient pretexts for appealing against the arbitral award. Arbitration centres and panels of arbitrators will have to take ever greater care to ensure at all times that all procedures - including expertise procedures - comply fully with the rules of due process.

The parties' intervention is not always an advantage: delaying tactics are fairly common, dissenting opinions are on the increase, as is the calling into question of the arbitrators' skill and actions or the relevance of their awards. This potential for dispute adds to the costs as well as slowing down the settlement of disputes. It entails an obligation for the institutions to respond with a view to avoiding undue delays or even interruptions. But the whole matter remains dominated by the will of the parties, and they express their will by asserting increasingly urgent pressure on panels of arbitrators, whose role has a contractual basis. This power that the parties have is expressed not only in the decisions that each litigant takes on its own behalf but also in the agreements concluded, either when the contracts are signed or in the course of the dispute settlement procedure, or sometimes with a view to amicable settlement. The increase in the role played by the parties entails an increase in the role played by their lawyers, and in particular corporate lawyers and barristers who with great imagination use every process possible with a view to obtaining the outcome their clients hope for.

This situation calls for a response from both arbitrators and institutions. In this regard, the ICC International Court of Arbitration has various possibilities: appointment of arbitrators and constitution of the tribunal even if one of the parties refuses to take part in the proceedings, approval of Terms of Reference in the face of reluctance by one of the parties, ensuring that arbitrators respect time limits, replacing an arbitrator who does not fulfill his task or who resigns, speedy scrutiny of draft awards in relation to jurisdiction and the applicable law, where necessary, approval of a majority award once it has been ascertained that the procedure complied with the rules of due process, and calculation of fees taking into account the speed and complexity of the case. It is necessary to arrive at a point where delaying tactics will be deprived of their effect and hence be of no interest, thus dissipating the malaise afflicting international cases. Indeed, the conduct of the parties or their lawyers often causes delays that are contrary to the very aim of arbitration. It calls for reactions from arbitrators and arbitration centres, and particular care in the selection of chairpersons of arbitral tribunals, attitudes which are also elements of an arbitration policy.

The increasing weight of disputes and the desire for precautions is expressed in particular by a tendency to favour three-member arbitral tribunals, even sometimes when the amount in dispute does not justify this. In 1995, for example, the parties opted for three arbitrators in 50% of cases, and for a sole arbitrator in only 23% of cases. The range of nationalities of the arbitrators has also expanded. While ten years ago some thirty different nationalities were represented, there are now sixty, including nationals of more than 20 developing countries. The same expansion applies to the number of different places of arbitration. The choice of the place is not neutral, because the particular state concerned can have an impact on the applicable procedure, possibly on the degree of the national courts' supervision of the procedure, on substantive issues and on the enforcement of the arbitration, particularly if one of the parties is a state entity. This development too brings about a transnational harmonisation of legal practices.

Another trend calls for a great deal of attention at the general level: the increase in the number of cases implicating the public services rather than only private matters. Accordingly, it has become difficult to use the term international commercial arbitration: it is better to employ the expression "arbitration in international trade dealings", an expression that may cover operations carried out under the direct control of administrative authorities or entities. Indeed, in many countries development projects are arranged and negotiated under government control and any disputes ensuing from them are very closely followed by the public authorities. Such cases may also involve international organisations when they have supplied development aid in the form of donations or loans. They sometimes raise issues of public credibility, or even the authority of politicians. International arbitration is sometimes of concern to the general public through actions of the press or during selection periods. Indeed, the outcome of major development operations may well have consequences - sometimes unfortunate repercussions - on employment, on the level of the economy and on national resources, hence electors are bound to be concerned by such matters. This political impact leads to a certain nervousness in the administration of major arbitration cases.

B. General standards of procedure

The more diverse the parties are, particularly if they comprise public agencies, the more important become all the questions relating to the principle of due process before the arbitral tribunals. It is not simply a matter of offering the parties every opportunity to put forward their views and adduce their evidence, but also to give the strong impression that the tribunal has heard them fully and treated them equally and that its decision will be taken in full knowledge of the facts at issue. In this area, practices will vary considerably not only depending on the laws or procedural rules applicable, but also depending on the type of civilisation. All procedural issues are of great importance because of the need for arbitration to respond to the fundamental rules established by the New York Convention on the recognition and enforcement of foreign arbitral awards, a treaty ratified by more than half the world's recognised states. The following matters should be verified: the existence of an arbitration agreement, whether the tribunal has been constituted in accordance with the applicable rules and agreements, whether the procedures followed were complete and complied with the rules of due process, and whether evidentiary matters were dealt with correctly. All such questions are not only in the hands of the parties and their lawyers, but also in the hands of the arbitral tribunals, especially when they are operating on the basis of a set of rules drafted by an institution under whose auspices they are acting.

A further addition to these general principles is the obligation of confidentiality, which is fundamental in international trade. Often the reason why enterprises resort to arbitration rather than to the national courts is because they do not wish other companies or governments to know about their problems. Keeping arbitral procedures confidential is a fundamental obligation for arbitration institutions. This is especially true in relation to more personalized cases that challenge the arbitrator entrusted by the institution with administering the arbitration proceedings objectively and consistently; in other words on the basis of a solid and impartial set of rules. At the ICC, these rules are confirmed by the Court itself, when it discusses the countless varied difficulties that arise in arbitration, from the interpretation of the arbitration clause to the correction of material errors in awards submitted for approval.

Hence arbitration practice is characterised by the gradual growth of a kind of general standard or harmonised body of law in relation to procedure. The increase in the number and the complexity of arbitration cases, the procedural difficulties to be resolved, the rules and customs drafted by certain arbitration institutions or applied by arbitral tribunals culminate in the formulation of a certain number of principles that govern the matter. The ICC Rules of arbitration - one of the most highly developed sets of rules - constitutes a sort of model that can be used for settling problems that may arise elsewhere. In the same sense, one should also notice the harmonising effect resulting from the model law drafted under the aegis of the United Nations (UNCITRAL) as well as the principles laid down in the New York Convention and in several other conventions applicable to arbitration. These general procedural principles apply to a wide variety of matters including the definition of the arbitrator's task, the model for which is the Terms of Reference, a characteristic of ICC arbitration.

Another observation is that arbitration is developing in a competitive sector. Indeed, it is a service that results from the will of the parties. They have the power not only to choose the rules whereby they intend to settle their disputes, but also to direct the whole procedure, starting with the choice of the arbitrators. Admittedly, certain ty pes of arbitration are limited in precise geographical regions, and for firms with links of a specific economic and cultural nature. However, most of the time arbitration is an activity with a totally international character, dominated by healthy competition between companies, between arbitration centres, even between lawyers. This competition should be directed towards an essential goal: to render the best possible arbitral award at the best possible price, and this award should insofar as possible be applied by the parties, of their own free will and with no need for constraint. Although it can lead to duplication, refusals of information, rivalries, and even sometimes to nationalism, the development of competition has beneficial effects; the main advantage being the ability to offer companies in the course of concluding contracts, a selection of rules and institutions for settling any disputes that may arise.

Like any service, arbitration has its price, and this price is often substantial. In ad hoc arbitration, it is generally fixed by agreement between the parties and the arbitrators; this, evidently, does not facilitate a general synthesis of the subject. On the other hand, certain arbitration institutions have inter alia the task of preventing direct financial relationships between the parties or their lawyers and the arbitrators. This is the case at the ICC where it is possible to immediately draft and publish regulations informing both the parties and arbitrators of the administrative costs and fees applied in practice. In this way a sort of financial policy in relation to arbitration is established with criteria of valuation and sometimes schedules of fees to which the parties obviously pay close attention.

The fact remains that the wide variety of arbitral panels, arbitration institutions and applicable procedural rules is as diverse as the clauses relating to them. International society has not instituted any single authority with the capacity to define a mandatory policy in this field and ensure that everyone concerned complies with it. Such is the diversity in this area that rather than eliciting a genuine policy, one should derive a general attitude based on the common problems to be resolved and the similarity of the responses provided in practice.

The advent of general rules for the management and administration of arbitration certainly presages arbitration practice in the next century, when it will emerge in an improved form, as an independent discipline at the height of its development. It should not be forgotten that methods of diplomacy were also derived from commonly accepted usages much more than from diplomatic treaties.

II - General policy concerning the arbitrators' decision-making

It is not enough simply to pursue a policy aimed at providing a quality service, it is important that disputes are given correct and applicable legal solutions. Can a legal policy, in relation to arbitral awards, exist that is similar to case law precedents that the national courts have? If the parties resort to arbitration, they expect it to provide them with an enforceable decision that will actually be enforced. Naturally, academic lawyers and the judiciary view the concept of the arbitral award with a certain flexibility. Nonetheless the fact remains that, at the level of general policy, any decision that results in legal consequences for the relationship between the parties involved - in particular in that it settles the issues in dispute, whether in whole or in part - has to be sur­ rounded by the judicial and procedural precautions described above. To the International Chamber of Commerce's merit, it should be pointed out that most final awards rendered under its auspices are carried out voluntarily by the parties, because such care is taken to ensure quality that a company that fails to carry out a final decision is almost certain to lose any subsequent process and in addition runs the risk of jeopardising its reputation in international circles, not to mention the various other consequences, such as the end to confidentiality, since court proceedings are public as a general rule.

A. Harmonisation of legal standards

Because of such considerations, a legal policy in the normal sense of the term would be desirable, or at the very least a harmonisation of the answers, so as to ensure that an arbitral award responds to legal criteria. Should and can such a general approach to substantive issues be that of individual arbitral tribunals taken in isolation? Can it emerge during the scrutiny of awards by certain national or international courts, for example within the International Court of Arbitration when it is carrying out its task of approving draft awards, or even in the course of organising certain particularly complex arbitrations? Is there such a thing as general principles of arbitration law in relation to private cases, just as there are general principles of international law, such as those to which the International Court of Justice (article 38 of its Charter) and the Washington Convention on the Settlement of International Disputes (article 42) both refer? The issue calls into question the extraordinary lack of uniformity of law in this field. This area is difficult to explore - in it there is no codification, and no off published case law precedents. Hence it is daring to advance the idea that general principles can be drawn up in this connection. Yet such principles do exist.

Arbitration is a contractual type of dispute settlement system. The basic rule is to apply standards to it that are valid in relation to contractual matters: free and full consent of the parties, correction, lawfulness and clarity of their commitment, even in the case of states, exclusion of any infringement of free will and human rights, respect of good faith and the undertaking. For this reason, once a government has signed an arbitration clause in the field of international trade it is considered bound by it. It is generally admitted and held by the Courts that the principle of good faith prohibits governments from invoking traditional diplomatic privileges as a means of avoiding their undertakings, particularly in relation to the procedure and the award. From this contractual viewpoint, the International Court of Arbitration takes the precaution of making the arbitrators draft Terms of Reference. In this way, the arbitrators are required to specify, in agreement with the parties, the parties' claims and the grounds of those claims, the object of the procedure, and possibly the actual amount in dispute. The Court ensures that such Terms of Reference are not contrary to the parties' intentions and the arbitration agreement and that they respect the parties' equality and the general principles of law.

A legal policy of arbitration should also aim to regulate the application of international standards which are developing in an increasingly complex fashion. In the field of world trade, a number of issues are beginning to fall under the sway of international conventions: conventions relating to sales, transport, industrial property, patents and trademarks may all be invoked before arbitration tribunals. Certain codes of conduct may also apply, relating for example to transnational companies or maritime conferences; the arbitrator's conduct in relation to the accepted principles that may result from this emerging law is a question for consideration. A current issue in western Europe is the meaning and force of community rules, such as regulations established at the European Union level. Many of these concern public policy within the Community and take precedence over national laws, imposing new rules on legislators and national courts, because any Member state must apply community law as a priority. An arbitration policy regarding European law will be developed and lawyers will have to know, interpret and apply this emerging set of rules.

A third category of rules includes trade and professional usages, rules, which naturally, and foremost involve good faith; although this is sometimes difficult to define and assess. Arbitration implements procedures relating to evidentiary questions and debate. Little by little, we see the development of a legal policy that can be called "normal conduct," as well as trust in the performance of international contracts: the right to be informed, the duty to inform, the duty to obtain information - a group of questions which become important in distant, complex and weighty disputes. More and more often, in the face of comparable situations, arbitrators provide answers inspired by the same principles. For example in relation to the interpretation and performance of contracts: where a clause is ambiguous, the common intention of the parties will be sought so that the spirit prevails over the letter; one of the duties of a contracting party is to warn the other party that it should make some provision against adverse occurrences in the course of the contract. The whole law of competition is developing: what constitutes fair or unfair competition, reasonable behaviour or abuse of a dominant position, what types of conduct are unacceptable in relation to the conclusion and performance of contracts. Arbitral tribunals have the task of building up a policy in relation to the normal management of competition and the interrelationship of business deals. This obligation applies not only under certain national laws, but also throughout the whole territory of the European Union where Community regulations prohibit abuse of dominant position and regulate the freedom of establishment and competition. The gradual harmonisation of the answers provided to numerous legal questions by arbitration practice, will contribute to the emergence of general principles of an international character, particularly in relation to public policy, despite disparities between national laws and the confidentiality of cases.

One particular feature of the present day is the decentralisation of law; in other words the discretion to choose the law that is to govern international contracts. When the applicable law has been chosen by the parties or the tribunal, there is nothing to prevent the tribunal from interpreting it and sometimes going beyond that law to discover applicable usages and customs. The essential matter then is to provide the parties with an award whose grounds are so complete and detailed that they can understand the reasons that led the tribunal to make its decisions on the basis of the applicable law, its interpretation and the assessment of the facts submitted to it. In this regard, international arbitration must be dispassionate; arbitral tribunals must operate clearly, transparently and objectively. But states for their part must moderate and harmonise the tendency towards too easily resorting to the notion of public policy as a means of paralysing the drafting or enforcement of arbitral awards.

Can it be asserted that a lex mercatoria exists? This is an interesting issue for international law to grapple with. The question has been widely debated. Answers to the. question have been supplied in arbitration practice - that is by various arbitral tribunals according to academic legal opinions enjoying differing degrees of support. The International Court of Arbitration is not a court of appeal, but is restricted to ensuring that the procedures comply with its rules, that awards are correct as to form, and where applicable that international public policy has been applied. It does not deal with the substantive issues in dispute. Accordingly, an arbitral tribunal is always free if it deems it necessary, to refer to a particular trading principle or law - whether written or unwritten - or to decide which rule of conflict of laws or which contractual clause should lead to the application of a particular legal system. In this regard also, a generally accepted attitude has emerged. Naturally, the answer will differ depending on whether the arbitrator has the discretion of an amiable compositeur or is bound to apply a specific law resulting from the will of the parties. However, even in amiable composition, there are different degrees of freedom depending on the nature of the dispute and the precise terms of the contract.

B. Harmonisation of the arbitrators' methodology

The application of an arbitration clause may involve the settlement of problems of jurisdiction, as the arbitrator himself has jurisdiction to decide on this question. Another problem, of a general nature, results from the need to ensure that cases remain confidential. In this field, also, both the arbitrator and the centre called to administer the arbitration are bound by a code of conduct. It is a matter of reconciling the procedures needed to ensure that the case is heard in compliance with the rules of due process. This involves each of the litigants being allowed to assert all its arguments and present all its claims, with a discipline aimed at preserving business secrecy and the interests of the parties involved, because only they are entitled to decide whether or not the dispute and its solution should be disclosed.

The administration of the arbitration also implies a methodology aimed at ensuring the smooth­running and impartiality of tribunals. Depending on the system of law involved, different investigatory rules will appl y. In classic arbitration, the evidentiary methods are relatively simple and speedy, whereas in American usage they are expensive and lengthy. The procedure should respect the rules of due process and treat each of the parties on an equal footing, otherwise the award will be weakened owing to infringement of the rights of the defense. This requirement means that the responsibility of sole arbitrators and of the chairmen of arbitral tribunals is becoming increasingly specific. Most often the chairman has the task of settling the procedural aspects, raising the issues to be resolved and directing the deliberations; sometimes he drafts the award. Under the ICC Rules he will even decide the outcome when the tribunal fails to agree. Hence it is a question not merely of taking charge of the investigation of the case, but of correct deliberation by the arbitrators, just as a national judge must act, with the addition of the need to take into account the possibility and the scope of any dissenting opinions owing to the fact that, in disputes between nationals - of different countries, very different sensitivities are expressed.

A general policy of arbitration also demands an attitude in relation to the drafting of arbitral awards. It is very common for technical questions to be referred to experts for resolution. The task of such experts will be assessed in a different manner depending on the arbitral tribunal. On the other hand tribunals are confronted with legal problems rendered increasingly complex and diff cult by the combative conduct of parties and their counsel or disparities between national laws. The principle that awards must be reasoned is generally agreed upon. There are very few exceptions to this rule, for example in American law and with the consent of the parties. Arbitral tribunals hence have to set out grounds in support of the terms of the award that are consistent, full and intelligible, that do not merely consist of setting out the issue, the parties' pleas, the findings of fact reported by expert witnesses, but above all, the reasons that led the tribunal to decide either unanimously or as a majority. This is a primordial obligation because an arbitral award is final and must be complete in itself.

It must always be borne in mind that the arbitral award is of no practical value unless it is carried out. This consideration, which is an important feature of the ICC Rules (Article 26), is quite fundamental and in itself creates an adequate basis for the approval of awards by the International Court of Arbitration, pursuant to the said Rules. The growing number of arbitration centres raises the problem of how to ensure that awards rendered are sound and satisfactorily enforced. Indeed, competition and emulation are salutary, provided they are not practised to the detriment of quality. In all likelihood, in the foreseeable future there will be no single unique world arbitration centre because companies will remain free to choose the conditions for the settlement of their disputes contractually. However, it is essential that each existing centre is capable of providing awards that will be effectively applied by parties often from countries that are very distant fr one another. Therefore the problem of standards of methodology to be observed by arbitral tribunals with a view to providing good justice is decisive.

The demand for arbitration is evidence of the accumulation and intensification of commercial and national disputes worldwide. The growing tension between companies, sometimes between states is one of the reasons why disputes are becoming increasingly serious and increasingly weighty. These features confirm the extent to which certain states are the purveyors of their own problems, particularly the flight away from their courts and their laws. Indeed, the reason why many private companies wish to avoid the national courts is because they have little knowledge of the procedures, the languages and the law used, nor of how the courts operate or how judgments are enforced. The state is in charge of the domestic law, but when governments modify the laws or make use of political pressure so as to avoid their obligations, they cause companies to flee their jurisdiction. In this way states themselves often accentuate international legal uncertainty, in an incautious and dangerous fashion, and encourage resort to arbitration because this affords an opportunity to seek and find clear and stable legal rules.

A general overview of international arbitration hence necessitates consideration of its cultural aspect. When parties originate from countries with very different civilisations, there is a store of information in the mind of each which is expressed not only in the language, but also in the legal concepts that it uses. In world trade, arbitration is asked to provide something that cannot be obtained from the national courts: it must simultaneously provide an opening to the needs of a very varied society in the course of the composition and the application of general principles that enable different civilisations to exist alongside one another. The arbitrator hence has to ensure that the cultural identity of each of the parties appearing before him is respected, whether they come from the Western hemisphere, central Europe or from the Asian, Arab or African worlds. This attitude is difficult to characterise because cultural originality is not easy to define; naturally it is applied in the constitution and operation of arbitral tribunals, in other words in the quality of the arbitrators. It is linked to their having open minds and to their knowledge, their respect of the particularities of each of the parties coming before them, to their perception of the world of trans-continental trade. If applied positively, arbitration is a means of surmounting the obstacles and exclusions in the vast sphere of individual or collective psychology.

Competition between legal systems and between arbitration methods should encourage the improvement of the service provided. It leads to legal services that are becoming increasingly specialised and refined for the benefit of a group of users who are increasingly exigent. Thus, the need for quality is a dominant factor in international arbitration. Authority, expertise and experience are often a precondition of the tribunal's impartiality. The role played by the arbitrators and especially by chair of arbitral tribunals is essential in this respect, both with regard to the arbitration procedure and in the drafting of awards. This is a new profession, the fr of whose labours are grounded in experience; it is a difficult practice, but which will become clearer as the years go by, with the cooperation of longstanding arbitrators and their young colleagues. Thus, gradually a general code of conduct for arbitration will be built. The International Court of Arbitration is seeking to define its content as each case succeeds the other. This code of practice should relate to the respect of a number of rules of conduct, not only in legal circles and towards the parties, but also in dealings between arbitrators and in the internal operation of arbitral tribunals. These rules are generally unwritten ones, but compliance with them is a precondition for the success of this activity.

It is clear from a combination of all the observations of current trends in international commercial arbitration, that this activity is gaining increasing importance both in the legal sector and in relation to the development of business. It is also clear that it raises issues that are increasingly complex and varied. In other words it calls for careful administration, to ensure that the obstacles of nationality, culture, commercial competition and political rivalry can be surmounted with total impartiality.

Conclusion

All civilisations have accepted arbitration as a method of settling disputes of every kind. The characteristic of modern trade is that it has given arbitration an international scope, outside national systems, attentive to different cultures, adapted to the needs of increasingly diversified activities, in which security is more and more necessary. It is not a matter of creating a duplicate of the national courts, whose task is well known, but of responding to new demands that the national courts are not always capable of satisfying. Here we have a major world economic trend which will continue to develop into the next century. Also, international arbitration has progressively become an autonomous discipline at the heart of the law and practices of international trade. So firmly established is this phenomenon that it could be said to resemble the birth of a culture of international arbitration within an active legal community, respecting the rules of a growing professionalism.

Additionally, as a service of a legal nature and as a method for settling disputes, international commercial arbitration has become a major activity demanding increasing attention from major companies, public authorities and their lawyers at every stage of projects: conclusion of contracts, drafting of arbitration clauses, follow­up of contracts, preparation of cases, etc. This has had a number of consequences: the increasing weight of companies' litigation departments, the extended involvement of large firms of business advisers in the preparation and progress of arbitrations, the need for improved legal qualifications and practice on the part of arbitrators. Their role is often increasingly delicate in view of the disparity of the applicable laws and the complexity of the procedures, while specialists and engineers are more and more often called upon as experts.

In this field, thanks to the quality of its rules and its practices, through the openness and stability of its composition, through its care in supervising procedures, in verifying the independence and operation of arbitral tribunals and in scrutinising draft awards submitted to it, the ICC International Court of Arbitration contributes usefully to the security and expansion of world trade. But it can only do this with care and dexterity, provided it shows the greatest impartiality towards the arbitrators - whose jurisdiction results from the agreement of the parties to the dispute and is autonomous for each case - and respect for the different legal and cultural approaches to arbitration which still vary greatly from one country to another.

Thus, through a fair procedural and jurisprudential policy, through the skill and impartiality of arbitral tribunals, international commercial arbitration aims to become a specific form of universal justice, independent of nations, governments and private companies.

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