9 Which has not always been accepted as a legal principle—far from it, as it is also captured in Sir Henry Maine’s famous phrase: ‘the movement of the progressive societies has hitherto been a movement from Status to Contract’ (Zweigert and Kölz, p 325).
12 On mandatory rules in international arbitration see, eg Bermann and Mistelis (eds).
17 Indirectly: according to rules of arbitration, whether institutional or ad hoc.
24 See also ibid, para 1–09.
28 On unilateral arbitration see, eg Prujiner.
32 Especially the French ones.
47 English Arbitration Act 1996, s 33(1)(a).
49 Lalive, Poudret, and Reymond, p 292. Because of the fact that arbitrators, like judges, are not always required to decide a dispute and sometimes only have to supplement or complete the agreement between the parties, Oppetit, Arbitrage, casts doubt on the jurisdictional character of arbitration.
59 The thesis was also developed that arbitration stays at the origin of State justice. This view is the one of B Matthias, M Wlassak, and their followers (eg R Monier and, more recently, A Magdelain).
71 See, eg also Gaurier, pp 189–223, on the question of whether the private dispute resolution in imperial China was arbitration or mediation.
73 Preserved by Demosthenes 21.94.
77 On Roman arbitration, see, eg de Loynes de Fumichon and Humbert.
79 C. 2,55(56),1 (Caracalla 213).
82 On arbitration in Canon law see, eg Lefebvre-Teillard.
89 Eg the guild tribunals, prominent first of all in Italy, or, later, specialized maritime courts which emerged along the shores of the Mediterranean.
90 Coming to prominence first in Italy, in the shape of the officium mercanziale and then spreading to Southern France.
91 Eg the Rabbinical courts.
94 See paras 2.74 et seq.
99 ibid, para 2–9. To facilitate arbitration, two Hague Conventions were concluded in 1899 and in 1907, both entitled The Hague Convention for the Pacific Settlement of International Disputes. These Conventions created the Permanent Court of Arbitration which still exists and functions today.
104 Most importantly, the 1927 Geneva Convention, the 1958 New York Convention, and the 1961 European Convention on International Commercial Arbitration, and, with regard to investment arbitration, the 1965 ICSID Convention. On these and further conventions see, eg Lew, Mistelis, and Kröll, paras 2–11 et seq.
106 On the New York Convention see, eg Gaillard and Di Pietro (eds).
116 On lex mercatoria see, eg Berger, Law Merchant; Carbonneau, Lex mercatoria; Cremades and Plehn; Dasser; Goldman, Applicable law, Frontières, Lex mercatoria, Perspectives; Kahn, Lex mercatoria, Pluralisme; Lando; Lowenfeld; Mustill, Lex mercatoria; Paulsson, Lex mercatoria.
118 On arbitration of consumer disputes see, eg Brafford.
122 This is the view of Diallo. See paras 4.58 et seq.
123 The expression ‘arbitration with forced consent’ and not ‘forced arbitration’ is used, because some French authors employ the French diction ‘arbitrages forcés’ rather for ‘mandatory arbitration’ (see, eg Jarrosson, Frontières, p 20). On the other hand, Rigozzi also seems to use the diction ‘arbitrage forcé’ for what in this book is called ‘arbitration with forced consent’.
126 Originally, arbitration commissions which were allowed to handle foreign-related cases were established under the auspices of the China Council for the Promotion of International Trade (CCPIT), a governmental body. However, gradually, the legal status of the CCPIT was transformed from a government institution into a non-governmental organisation; the CCPIT also began to use the name ‘China Chamber of International Commerce’ (Tao, CIETAC, p 513). Yet the China International Economic and Trade Arbitration Commission (CIETAC) remains the largest arbitration institution of China and it is regularly insisted upon by Chinese contracting parties. With regard to arbitration in China see in particular Tao, China.
129 See the expression used by Paulsson, ibid.
133 See also Rigozzi, para 473. On arbitration clauses in articles of association, see paras 8.44 et seq.
134 On the appeal arbitration procedure before the CAS, see Arts R47 et seq of the CAS Code.
139 See DFT 133 III 235, consid 18.104.22.168., citing DFT 129 III 445, consid 22.214.171.124. (translation by author).
140 DFT 133 III 235, consid 126.96.36.199., making reference on the question of ‘forced’ arbitration to Rigozzi, paras 475 et seq and 811 et seq (translation by author) (emphasis added).
141 See DFT 133 III 235, consid 188.8.131.52.
142 ibid (translation by author) (emphasis added).
143 Compulsory arbitration was, eg already very developed during the French Revolution (see Huys and Keutgen, No 7, pp 5–6 with references).
147 See, eg in the United States the Ted Stevens Olympic and Amateur Sports Act, in particular its s 220509 of the United States Code.
149 See s 220509(a) of the United States Code.
150 See s 220522(a)(4) of the United States Code.
152 The World Anti-Doping Code is mandatory for the whole Olympic Movement (see Rule 43 of the Olympic Charter (2011)).
154 More than 190 governments have signed the Copenhagen Declaration, see the list of countries at http://www.wada-ama.org (under the sections ‘World Anti-Doping Program’/‘Governments’/‘Copenhagen Declaration’).
155 See preamble to Art 22 of the WADA-Code.
156 See Art 13.2.1 of the WADA-Code.
160 For example, arbitration under the auspices of the ICSID, under the ICC Rules or under the SCC Rules.
161 For example, arbitration under the UNCITRAL Arbitration Rules. See Lalonde, p 191.
163 See the ICSID Annual Report 2011. A list of the cases filed can be found at http://icsid.worldbank.org (under the section ‘Cases’).
165 ICSID Annual Report 2011, p 25.
166 At the end of 2008 2,676.
173 BITs have proliferated over the last three decades. At the end of 2008 there were 2,676 BITs (see UNCTAD). Recent developments in international investment agreements (2008–June 2009), IIA Monitor No 3 (2009), available at http://www.unctad.org/iia/series.
179 The view that in investment arbitration there is no privity will however later be questioned. See paras 5.58 et seq.
191 However, this has not always necessarily been the case. See, eg Art 8(3) of the UK Model BIT (2005), preferred version. On this provision see para 5.29.
195 See Section B of Chapter 2.
196 See Sections B and C of Chapter 3.
198 On the multiple facets of consent to arbitration see Chapter 5.
199 With regard to the substantive side of the arbitration agreement see Section C of Chapter 5.
202 See, eg the Montevideo Convention, the Geneva Protocol of 1923, and the Geneva Convention of 1927. On these international conventions see, eg ibid, paras 1–213 et seq.
205 On the New York Convention see, eg Gaillard and Di Pietro (eds) or Kronke, Nacimiento, Otto, and Port (eds).
206 Over 140 countries are party to the New York Convention.
215 ibid. The situation is different in non-ICSID investment arbitration cases. See, eg Republic of Ecuador v Occidental Exploration and Production Co  EWCA Civ 1116; Czech Republic v Saluka case, DFT 4P.114/2006, 7 September 2006, ASA Bull 1/2007, p 123.
218 Eg arbitrations conducted in accordance to the UNCITRAL Rules or the SCC Rules.
219 Delaume, Immunity, p 32; Arnoldt, p 170. However, Art 55 of the ICSID Convention makes clear that such waiver does not extend to issues of execution where the national rules are relevant and are not affected by the ICSID rules.
224 ibid, paras 2–6 et seq.
226 On party autonomy see paras 2.04 et seq.