Ökonomische Analyse der Schiedsgerichtsbarkeit

Private arbitral tribunals constitute an important alternative to state courts, particularly in disputes arising out of international commercial contracts. Lower costs, faster proceedings, flexibility, confidentiality, and procedural autonomy are frequently cited as advantages. An economic perspective, however, takes a different approach: it examines the benefits parties expect from including an arbitration clause and the costs they weigh against those benefits.
Gerhard Wagner does not develop a formal mathematical model but rather a qualitative economic framework, which he tests against existing empirical studies. He adopts a comprehensive view of the international dispute resolution landscape. In addition to Germany, he conducts a comparative analysis of France, England, and Switzerland, assessing their competitive positions.
Demand for arbitration is driven less by cost advantages than by expected benefits. Parties seek the most accurate possible enforcement of contractual rights and obligations in order to maximize the joint value of their contract. This objective is balanced against financial and temporal costs, as well as potential effects of disclosing confidential information.
On the supply side, arbitrators, arbitral institutions, legislators, and state courts play a role. These actors are not neutral but pursue their own interests and respond to party preferences. Common assumptions about party-appointed arbitrators or a tendency toward "split-the-difference" awards do not withstand scrutiny. In the competition among arbitral seats, England is widely regarded as leading, while France, Switzerland, and Germany each offer distinct profiles. The study concludes by examining the relationship between arbitration and mediation and by discussing the broader effects of confidential dispute resolution.