Against the Reflex: When the Arbitration Clause Is the Wrong Choice

The arbitration clause has become a reflex — inserted into every commercial contract as a matter of habit rather than judgment. But the promise that once justified it, speed and privacy, has quietly eroded.

The appointment of an arbitrator is now frequently a litigation in itself, fought through the courts before the dispute proper has even begun. Meanwhile, the Commercial Courts Act has matured, offering timelines and case management that rival what arbitration once uniquely promised.

None of this is to say arbitration is dead — only that the choice deserves thought. The clause should be a decision, not a default.