International Arbitration:

from a neutral’s perspective

Continuing our series of interviews with arbitration experts, we spoke with Marieke Witkamp, a retired Dutch commercial judge now based in Houston, where she serves full-time as an international arbitrator. With a career spanning roles as in-house counsel, arbitration attorney, and judge, and with licences in both the Netherlands and Texas, Marieke brings a valuable dual civil-law/common-law perspective to her work. She is also a Fellow of the Chartered Institute of Arbitrators and a member of ICC Netherlands.

As she puts it: “Over the years I've had different roles. That helps you to see things from different perspectives.”

In this interview, she reflects on the moment she truly understood the power of arbitration, the advantages it offers over litigation, and how dispute resolution continues to evolve across different sectors.

When did you first realise that arbitration was such a powerful tool for dispute resolution?

I started my career in the Dutch courts. I was trained among very qualified lawyers and senior judges, and I really believed that litigation was the natural path for resolving disputes. Arbitration only crossed my desk when there was a jurisdiction challenge because a contract included an arbitration clause.

Things changed when I worked in Qatar and later in the United States. Confronting so many different court systems – each with its own language, procedural expectations and cultural habits – made me realise how complex cross-border litigation truly is. Watching foreign parties try to find local counsel, navigate local courts, translate everything, and learn unfamiliar procedures made a deep impression on me.

Looking at the process of litigation from the client’s perspective, I realised: this is why you need arbitration. It was a long time in the making, but that experience made me a believer.

Is arbitration typically between two parties, or can it involve more?

You can absolutely have multiparty disputes. This can only complicate matters because arbitration always relies on an arbitration agreement, so you need all relevant parties bound by such an agreement. If you don’t have that, there are still ways to get the so-called non-signatory parties involved in arbitration, but that is less straight-forward than in a court proceeding with multiple parties. What matters is understanding the underlying agreements and ensuring the arbitration clause(s) actually cover(s) all the parties involved.

Many people assume arbitration happens in one of the parties’ home countries. Is it common to select a neutral venue?

Yes, and that’s one of arbitration’s strengths.

An American and Dutch company can agree to arbitrate in France, the UK, Singapore – anywhere. In litigation you often end up in the court of the defendant, whether you like it or not, unless you agreed to the jurisdiction of a specific court. But in arbitration you can choose the forum, the procedural rules, the hearing venue and the law that applies. It’s all about party autonomy.

What do think are the main advantages of arbitration over litigation?

I often refer to five main advantages:

1. Neutrality: in an international context, no party wants to appear before the other party’s national courts. Arbitration offers a neutral forum.

2. The ability to choose your arbitrators: parties can appoint arbitrators with specific legal backgrounds or nationalities. In a US–Dutch dispute, for example, you often see one Dutch and one US arbitrator, balanced by a chair with experience in both civil and common law. Another aspect is that arbitrators do not have to be lawyers. It is not uncommon to appoint expert arbitrators in e.g. construction or maritime cases. That is something courts usually cannot offer.

3. Confidentiality: arbitration protects sensitive business information.

4. Finality: there is no appeal, which gives parties closure.

5. Last but not least: the New York Convention 1958 ensures the global recognition and enforcement of arbitration agreements and awards. This Convention is signed by 172 countries and really is the foundation for international arbitration.

   
   

How common is it to include non-lawyers on an arbitral tribunal?

More common than people think: especially in technical sectors. In construction, maritime, or other ‘engineering-heavy’ disputes, you might have one, and sometimes even, more arbitrators with specialised knowledge. Also in general commercial disputes, parties might choose someone with for example financial expertise. The key is that arbitration gives you that option.

Besides legal expertise, arbitration experience or specialist knowledge, how important is an arbitrator’s personality in guiding parties towards a resolution?

Personality does matter. By the time parties reach litigation or arbitration, they have already tried and failed to resolve their dispute themselves. A good arbitrator is open to what parties need and listens carefully. What’s more, there’s room for creativity in guiding parties through the process, helping them see common ground, and managing the procedure so it remains constructive.

If arbitration has so many advantages, why is litigation still more common in many places?

It’s helpful to distinguish between domestic and international disputes. For domestic parties, litigation often makes perfect sense: the courts are local, the language is familiar, and the legal culture is known. For international parties, the situation changes. Neutrality, enforceability under the New York Convention, and procedural flexibility become crucial. Sectors also differ. Construction and maritime industries frequently choose arbitration because disputes require specific expertise.

Maritime arbitration is often associated with London. Why is that?

The maritime sector has its own traditions. Many maritime arbitrations are conducted under the London Maritime Arbitrators Association (LMAA) Rules. London is globally regarded as the centre for maritime dispute resolution. Historically, when England ‘ruled the waves,’ much of the world’s shipping business ran through London brokers. Contracts were drafted there; expertise accumulated over generations. Even today, English law is often the applicable law in maritime arbitrations seated around the globe, because it provides predictable, well-developed case law. What’s interesting is how many maritime cases settle early. Simply initiating arbitration under LMAA Rules signals seriousness; that alone prompts many parties to negotiate. A large percentage never reach a final award.

How does mediation fit into the picture? Is it used enough?

I believe mediation is undervalued in business. It has enormous potential but is still not used as widely as it should be – especially compared to the United States, where nearly every dispute goes to mediation first. In mediation, parties work with a neutral facilitator who has no decision-making power. It is a collaborative and creative process. I’m convinced it should be used more.

Maybe this is a silly question, but does arbitration take place in courtrooms?

One of arbitration’s defining features is that hearings can take place anywhere but in a court room – hotel conference rooms, law firm offices, and even in community centres. It is more informal and more adaptable to the needs of the parties. As a result, the parties involved find it a less overwhelming process. Despite this informality, the process still follows key stages: submissions, document production, and then the hearing.

What role does the arbitrator play in the process?

In arbitration, the tribunal is involved from the very beginning. After appointment, we hold a case management conference to set procedural rules and, in ICC arbitrations, to discuss and finalise the Terms of Reference. This early conversation is essential; you get to see where parties are coming from. It helps clarify expectations and build a working relationship – not just within the tribunal but also with the parties.  When issues arise later, it becomes much easier to organise a status conference and resolve them efficiently. For me, this early communication reflects the spirit of arbitration: clarity, collaboration, and moving the process forward in the best way possible.