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judges are called ‘arbitrators’ and their judgment an ‘award’. Although some arbitrations are
conducted by a single arbitrator, this is really only suitable for a relatively simple case involving a
narrow, essentially factual, point. It is normally better to have one arbitrator appointed by each party
and one (or, even better, three) neutral arbitrators, the appointments being made as for a conciliation
commission.
55
Those appointed by each party be able to explain further their state’s position, and be
able to share what may be a considerable workload. Although it may be more common to have only
three arbitrators (as in the Iran–US Claims Tribunal) this is not ideal since the chairman then needs
the support of one of the two national arbitrators in order to reach a decision. He may therefore have
to compromise, whereas three neutral arbitrators should be better able to reach an impartial
decision.
56
Many multilateral and bilateral treaties contain arbitration clauses and, apart perhaps from a
regional specialist tribunal like the European Court of Justice, rather more treaty disputes are
decided by arbitration than by judicial settlement.
Arbitration is not necessarily cheaper or less complicated than judicial settlement. But the parties
are better able to control the process (choice of arbitrators, language(s) and confidentiality). If they
want a quick decision they can more easily direct the tribunal to finish by a specific date. This is
helped by the fact that, even with five arbitrators, reaching a decision should be that much easier
than with, say, the fifteen judges of the ICJ. But, such advantages have to be weighed against the fact
that all the costs of the arbitrators, the registrar, other staff and accommodation have to be borne by
the parties (normally in equal shares whatever the outcome), in addition to their own legal costs.
And, since an arbitral tribunal has to be constituted for each case and its rules of procedure may well
have to be agreed, the mere setting up of the tribunal can take many months. As we shall see,
judicial settlement has certain other distinct advantages over arbitration. In 1998, in The M/V Saiga
(No. 2), the parties, Saint Vincent and the Grenadines and Guinea, after beginning arbitration
proceedings, agreed to take their dispute to the International Tribunal for the Law of the Sea.
57
It is often said that the nature of the arbitration process is such that the result is usually a
compromise. That may be so, but it would seem from
55. See, for example, the Swiss–United Kingdom Treaty (n. 12 above), Article 16.
56. D. Bowett (ed.), The International Court of Justice: Process, Practice and Procedure, London, 1997,
p. 9.
57. ILM (1998) 360 and 1202; 120 ILR 143. For ITLOS, see p. 323 above.