Recent applications of the theory of regulatory competition to the domain of international commercial dispute resolution have coined the term “Market for Dispute Resolution”. On this market the commercial courts of different nations as well as different international arbitration institutions compete for disputes, while international businesses and their lawyers on the demand-side shop for the dispute resolution services which best fit their needs by virtue of choice of court and/or arbitration agreements. If this description was accurate, the question arises, which norms constitute this market in terms of enabling and at the same time limiting competition with a view to preserve fundamental rule-of-law values such as access to justice, fairness, legal certainty, and public policy. After elaborating a little on this general framework, taking examples from England and Germany, Professor Calliess will present some evidence on dispute resolution trends in the maritime industry and discuss the potentially detrimental effects of the ongoing privatization of dispute resolution on the provision of legal certainty as a public good. More specifically, he will point at competition restricting practices as a cause for concern and will discuss whether the application of antitrust law to behavior on the market for dispute resolution may work as a potential cure. He will conclude with some generalizations on the necessity of a constitution for the market for dispute resolution and related avenues for future research.
Gralf-Peter Calliess is Professor for International Commercial Law and Legal Theory at the Law Department and Director at the Center for Transnational Studies of the University of Bremen. He is president of the German Law & Society Association and in 2007-14 supervised a series of empirical studies in the institutional organization of cross-border commerce. With Peer Zumbansen he co-authored “Rough Consensus & Running Code. A Theory of Transnational Private Law” (Hart: Oxford, 2010), and he is editor of “Rome Regulations. Commentary on the European Rules of the Conflict of Laws” (Kluwer Law International 2011, 2nd ed. forthcoming 2015).