A Comparative Analysis of the Arbitrability of Tort Claims and the Demand for Adjudication

Paul Aubrecht (Erasmus University Rotterdam, University of Hamburg, University of Bologna)

Abstract

Abstract: Six states (nations), England and Wales, France, Germany, Italy, the Netherlands, and the United States (U.S.), are examined using a comparative law and economics methodology. This research focuses on theses state's source of laws on the use of arbitration for tort claims, publicly available information concerning he use of arbitration for tort claims and the consumption of legal services are identified. The acceptance of ex ante contracts to use arbitration for tort claims which have no international characteristic is not universally recognized, while the use of arbitration for tort claims arising from international contracts is recognized as an international legal norm. The divergence of approaches in the use of purely domestic arbitration for tort claims is thus appropriate to examine from a comparative law and economics perspective. Domestic sources of law concerning the use of arbitration for tort claims are compared and international sources of law which influence each state’s legal culture are identified. In general, we can observe that European states are less accepting of the use of arbitration for tort claims, particularly those involving consumer contracts, when compared to the United States approach to the use of arbitration for tort claims. Relevant information about the use of arbitration tribunals to determine tort claims is essentially impossible to identify. Some of the publicly available data from domestic arbitration associations is examined, and in general this data is of little use due to the secretive nature of arbitration and the lack of disclosure concerning the use of arbitration for all claims, including tort claims. Due to the lack of publicly available information about the use of arbitration for tort claims, proxy measurements concerning the consumption of adjudication services are identified. Information concerning population rates, legal resources, civil claims, and transnational legal indicators (TLI), are used as a next best option. Because these proxy measurements alone provide little information about the use of arbitration for tort claims specifically, they are considered a poor next best option. However, these proxy measurements do highlight some important differences in the consumption of legal services in each state, of which arbitration services is a part. This paper identifies relevant sources of law concerning the use of arbitration for tort claims and highlights the need for additional research concerning rates of adjudication of tort claims across both public and private forums.

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