Warbitration: Arbitration in an Atmosphere of War

Abstract “Warbitration” is a concept created to try to mix many issues regarding international arbitration law and practice in an “athmospere of war”. The most difficult is to draw up what this kind of atmosphere means. Armed warfare, of course, witch is very rarely, maybe never, seized by any jurisdiction, but also where a variety of non-armed, non-military acts of aggression by or against private entities, by or against states, including ordinary investment or commercial disputes, participate to the “new order of chaos” we all assist since the beginning of the war in Ukraine. These aggressions are not warfare aggressions, but they participate to the building of an “atmosphere of war”. In contrast to the law of armed conflicts, these forms of aggressions, or acts of “atypical warfare” are not the subject of specific international law. This leaves the place of war, war disputes and their treatment to be measured. Consequently, while war is usually covered by arbitral practice in all its aspects, from the constitution of the arbitral tribunal to the award and the conduct of the proceedings, there is a major difficulty. Are the mandatory law of these forms of war, such as economic sanctions or norms of conduct prohibiting human rights violations, likely to be covered by the international arbitrator? Could the development, not so much of arbitration as of the control of arbitral awards, or even of the prevalence of mandatory law, lead to a change in the very mission of the arbitrator? In addition to these many questions, there is another dimension: the way in which arbitration law deals with war. Numerous international instruments deal, primarily or secondarily, with the fact of war, but the idea of arbitration as an ordinary mode of peaceful dispute resolution, so essentially envisaged at the beginning of the twentieth century, has not allowed this extraordinary tool, arbitration, to really emerge. Now, with the disintegration of the international order and the general criticism of its institutions, it is perhaps time, indeed urgent, to return to this subject.