Revista Brasileira de Arbitragem

Volume 10 (2013)

Volume 10 (2013) / Issue 38

Bruno Guandalini, 'Bilateral Arbitration Treaties and Efficiency: a New Proposal on and an Old Challenge to International Commercial Arbitration' (2013) 10 Revista Brasileira de Arbitragem, Issue 38, pp. 16–29


ABSTRACT: Professor Gary Born proposed the adoption of a Bilateral Arbitration Treaty ("BAT") during the final speech of the 2012 Kiev Arbitration Days entitled "BITs, BATs and Buts". The idea postulates that the concept of Bilateral Investment Treaty applied to international commercial arbitration where determined disputes between parties from the two BAT countries would be by default submitted to arbitration without any direct consent to arbitration. Professor Born mentions both the reasons countries would want to adopt BATs and the "substantial grounds for doubting the wisdom and usefulness of BATs" - the "Buts". This text does not have the purpose of rejecting the proposal of Born. Quite the reverse, it will emphasize that efficiency is a good and legitimate motivation to adopt them. However, the primary purpose is to predict the efficiency of a BAT in comparison to the traditional system based on the New York Convention. Finally, the text will explain that there are some other Buts that will decrease any advantage the BAT could have in comparison to the traditional international commercial arbitration.

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ISSN: 1806-809X
ID: RBA2013026