How Much Can It Be Bent Before Breaking? Changing the Foundations of Arbitration in Securities Disputes

Following the emergence of arbitration in the stock market disputes, governments and brokers have tried to modify the arbitration procedure in order to adapt it to their needs. Consequently, the foundations of arbitration, such as freedom to enter into an arbitration agreement and selection of arbitrators, have changed in relation to rules and practice. Some of the securities arbitrations have judicialized and have lost the fundamental principles of arbitration, while others have changed only some of the traditional arbitration traits. It is important to protect the nature of arbitration; otherwise, the necessary support of courts for the arbitration procedure and enforcement of arbitration awards both in the domestic and international realms arguably will be undermined.

By analyzing securities arbitration in countries in terms of both the common and civil law systems, this paper attempts to identify securities arbitration’s limitations and discover the extent to which such arbitration has changed, and whether the same basic structure still exists, or whether a new form of ADR has emerged.