Is the End Nigh Again? An Empirical Assessment of the 'Judicialization' of International Arbitration

The central questions that this article addresses are: Has there been a significant judicialization of international arbitration in recent years? And is this judicialization really a sign of a loss of attraction for international arbitration? For these purposes, conventional assumptions about the extent and meaning of the phenomenon of judicialization in international arbitration are assessed in the light of empirical data made available by the leading institutions in the field of international arbitration, including the International Court of Arbitration of the International Chamber of Commerce (“ICC”), the London Court of International Arbitration (“LCIA”), the International Center for Dispute Resolution (“ICDR”), and the Arbitration Institute at the Stockholm Chamber of Commerce (“SCC”). This article answers its two research questions negatively, for two main reasons. First, empirical evidence does not support the assumption that international arbitration has recently become more judicialized. The evidence suggests that, if there has been judicialization, the bulk of it must have happened over two decades ago, before the recent period of exponential growth in the use of international arbitration. Second, the increased formality and sophistication of international arbitration procedure is partly due to the evolution of the dispute types referred to international arbitration. In particular, there has been an increase in the value and complexity of disputes. In short, judicialization is more a sign of international arbitration's mutation than evidence of its impending extinction