Moderators Matej Pustay, Miljana Bigovic, and Velimir Živković introduced Marieke Witkamp, a Houston-based international arbitrator and Dutch substitute judge, as they led this latest International Arbitration Forum session examining the practical, procedural, and philosophical distinctions between judging and arbitrating. Moving beyond textbook comparisons, the discussion highlighted how these roles diverge in real-world practice and mindset. Drawing on Witkamp’s cross-border experience, the session offered a nuanced exploration of modern dispute resolution dynamics.

Shared Foundations

Witkamp opened by emphasising that both litigation and arbitration serve the same core purpose: resolving disputes in a final, fair, and binding manner. However, the similarities largely end there, with meaningful divergence in how each system operates and is experienced by decision-makers and parties.

Selection, Visibility, and Professional Identity

A defining distinction lies in how decision-makers are appointed. Judges are institutionally assigned, while arbitrators must be selected by the parties. This shifts the arbitrator’s role closer to that of an independent professional who must actively build visibility, reputation, and networks. Witkamp noted that transitioning into arbitration required developing skills in positioning and marketing, which are irrelevant in judicial careers.

Formality vs Flexibility

Court proceedings are highly formalised, with established rituals and environments. Arbitration, by contrast, is markedly informal and adaptable. Hearings may take place in hotels or meeting rooms, and the procedural structure is far more flexible. This informality can initially feel unfamiliar but ultimately enables a more tailored dispute resolution process.

Authority and ‘Due Process Paranoia’

While judicial authority is firmly grounded in statutory frameworks, arbitral authority stems from party consent. This can lead to “due process paranoia”, where tribunals act cautiously to avoid enforceability challenges. Whitcomb challenged this mindset, noting that arbitral rules already empower tribunals to act decisively and that courts rarely overturn awards on due process grounds.

Procedure and Proximity to the Case

Court procedures are standardised and predictable, whereas arbitration procedures are bespoke and collaboratively designed. Arbitrators are typically more involved throughout the process, engaging with parties from an early stage. This closer proximity fosters a more interactive and responsive approach to case management.

Moderator Perspectives and Discussion

Pustay steered the discussion towards the nature of justice delivered in each forum, questioning whether judges, unlike arbitrators, bear a broader responsibility for the development of law and public justice. Witkamp agreed, noting that judicial decisions contribute to legal precedent, whereas arbitral awards typically remain confined to the parties.

Bigovic brought a forward-looking perspective, focusing on international commercial courts. Drawing on her academic work, she questioned whether these courts represent the “best of both worlds” or a hybrid that may struggle to find its place. Witkamp responded that while such courts offer flexibility, expertise, and English-language proceedings, they still lack key advantages of arbitration, including confidentiality and enforceability under the New York Convention.

Živković contributed to the discussion by prompting practitioners to reflect on what judges could better understand about arbitration practice. This opened a broader exchange on procedural flexibility, informality, and the evolving expectations placed on arbitrators as both decision-makers and service providers.

Party Representation Spectrum

Unlike courts, where legal representation is usually mandatory, arbitration allows for a broader range of representation, from self-represented parties to highly specialised counsel. This variability can present both challenges and advantages, depending on the sophistication of the parties involved.

Facilitating Settlement

Witkamp highlighted the proactive role courts in civil law jurisdictions often play in encouraging settlement. While traditionally less common in arbitration, this practice is gaining traction, reflecting a growing openness to integrating settlement facilitation into arbitral proceedings.

Confidentiality and Case Law

Confidentiality remains a cornerstone of arbitration, limiting the development of publicly accessible case law. However, increasing calls for transparency, driven in part by AI and data needs, are leading to more publication of arbitral awards. Whitcomb described this as an evolving space with significant implications for the field.

Training and Professional Development

Judges undergo extensive formal training, whereas arbitrators typically do not face equivalent requirements. Witkamp advocated for greater emphasis on structured training and continuous education within the arbitration community.

Diversity and Inclusion

The session concluded with a discussion on diversity. Courts tend to achieve stronger gender diversity, while arbitration benefits from greater cultural diversity. However, both systems require more deliberate efforts to ensure inclusive representation in appointments, teams, and visibility.

Public vs Private Justice

A key conceptual distinction emerged in the discussion. As Pustay highlighted, judges contribute to the development of public law and precedent, whereas arbitrators deliver private justice confined to the parties. This distinction underpins many of the structural and philosophical differences between the two systems.

The Role of International Commercial Courts

International commercial courts were identified as a potential bridge between litigation and arbitration. Bigovic’s questions underscored both their promise and limitations. While they combine procedural flexibility with judicial structure, they do not fully replicate arbitration’s advantages, particularly in confidentiality and enforcement.

Judging vs Arbitrating: The Core Distinctions Unwrapped

• Arbitration demands a more entrepreneurial and service-oriented mindset than judging.
• Flexibility and collaboration are central to arbitral proceedings.
• Concerns around due process in arbitration may be overstated.
• The balance between public and private justice remains a defining difference.
• International commercial courts offer potential but are not a complete substitute.