1.4. The discontent with the classical characterization of arbitration, in particular

with its consensual nature

Complex multiparty situations in commercial arbitration have led scholars to speak about the marginalization of consent or to pose the question of whether a modern approach to consent is perhaps emerging. Moreover the expansion of the use of arbitration in fields other than traditional commercial arbitration has also changed the perception of arbitration and, in particular, its consensual nature. The following passage reflects this changed view: More and more, the classical concept of arbitration based on consent is being supplemented by other concepts of arbitration which largely ignore this requirement. This is so especially in the areas of sport, consumer transactions, and investment arbitrations based on treaties or national statutes. This is only natural, as arbitration becomes the most common method for

settling international disputes. One may choose to cling to the dogma o f consent and when no true and meaningful consent exists, rely on a fiction o f consent. But if we merely preserve the appearance of consent, this justification for arbitration is no longer compelling. Indeed, it may be more accurate and intellectually honest to simply admit that arbitration without consent exists. Having made that admission, one can then investigate the requirements that have come to replace consent.

2. The Historical Evolution o f the Concept and the Consensual Nature o f Arbitration

Arbitration as a mechanism for the resolution of disputes preceded the courts and must have existed since the dawn of commerce.

2.1. The traditional concept o f arbitration

Originally any decision to make recourse to arbitration was taken by the parties after the dispute had broken out (compromis arbitral). Arbitration had, therefore, a purely consensualcharacter with a peace restoration function. Arbitration was known in Mesopotamia, both in relation to what nowadays would be classified as ‘public international law’ and ‘private law’ disputes. Several examples of conflicts between States were resolved by mediation or arbitration by a third power. Moreover, Assyrian merchants of the 19th and 18th centuries BC frequently resorted to arbitration, but arbitral procedure was also used in certain areas of family law and, in particular, succession.

Pre-Islamic Arabia knew arbitration and the institution was later developed in the Islamic world. From the beginning, arbitration was employed in different areas and in different cultures and the issue of differentiating arbitration from similar institutes was not unknown. Not surprisingly, arbitration also made its appearance in ancient Greece, even though it was not always easy to distinguish from similar practices such as ‘amiable composition and conciliation. The concern with re-establishing peace and security in human relations, and the Greek cities’ hermetic approach to jurisdictional questions, allowed both private and interstate arbitration to develop into a particularly appreciated and widespread practice which found its apogee with the restoration of democracy around 400 BC, when the Athenians enacted a law on private arbitration. In particular, Greek cities gave access to the law to persons and property which were on the margins, or outside the scope of the application of the law and thereby protection from the civil courts. Therefore, the tendency to extend the scope of application of the law and of protection by giving the possibility of recourse to a neutral dispute resolution forum already existed. Yet arbitration’s major development came under the Roman Empire. From a technical point of view Roman arbitration was based on two agreements:

• the receptum arbitri, the agreement between the disputing parties and the arbitrator by which the latter accepted and assumed the obligation to resolve the dispute and the formers accepted his decision;

• the compromissum, the agreement by which the parties on dispute agreed to submit the dispute to an arbitrator chosen by them conjunctly and to follow the decision which he rendered.

The arbitral award was definitive and there was no means of reformation appeal {ex sententia arbitri ex compromisso... appellari non posse) . However, the nature of arbitration was strictly contractual and respect of the arbitral award could only be assured indirectly by providing the compromissum with a penal clause permitting, if necessary, recourse to the actio ex stipulatu for the winning party.