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My answer is that three things are wrong – but they all owe their

origins to the fundamental difference between proceedings in the

established courts of law and proceedings before an arbitral tribunal.

Holdsworth, in his History of English Law, wrote20:

“The practice of arbitration therefore, comes, so

to speak, naturally to primitive bodies of law;

and after courts have been established by the

state and a recourse to them has become the

natural method of settling disputes, the practice

continues because the parties to a dispute want

to settle it with less formality and expense than

is involved in a recourse to the courts.”

In a similar vein, a distinguished French lawyer has written of

arbitration as an “apparently rudimentary method of settling disputes,

since it consists of submitting them to ordinary individuals whose only

qualification is that of being chosen by the parties.” He added that,

traditionally, countries of the civil law were hostile to arbitration as being

“too primitive” a form of justice.21

20 21

Holdsworth, History of English Law (1964), Vol. XIV, p.187. Fouchard, L’Arbitrage Commercial International (1965) pp. 1, 30 and 31 (my translation).

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