University of New South Wales Faculty of Law Research Series
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of New South Wales Faculty of Law Research Series |
|
“LEGAL TRADITIONS” AND INTERNATIONAL COMMERCIAL ARBITRATION
Leon Trakman*
Copyright Reserved: Accepted for Publication by the American Review of International Arbitration, 2007, published by the Parker School of Foreign and Comparative Law, Columbia University
Abstract
Codes, laws and guidelines governing international commercial arbitration developed by such organizations as the International Court of Arbitration, the International Bar Association and the International Chamber of Commerce have been drafted against the background of Common Law and Civil Law values. In balancing these two great legal traditions, it was assumed that together they represent a composite legal tradition governing international commercial arbitration. The result of that assumption was decades of fine work enshrining international arbitration doctrines, principles, and rules of law and procedures that blend these two important legal traditions. More recent concerns have begun to raise such questions as: How pervasive are the Common and Civil Law traditions?
Part I of this article asks: What is a legal tradition and how should it be distinguished from a legal culture in relation to international commercial arbitration? Part II reflects on the influence of legal culture on international commercial arbitration. Parts III, IV and V investigate the Common and Civil legal traditions in relation to national, regional and international commercial arbitration. Part VI evaluates the public traditions that surround international commercial arbitration. Part VII considers whether change in the traditions of international commercial arbitration represent culture change or culture shock. Part VIII emphasizes the value of building an inclusive international arbitration tradition. Part IX suggests ways in which international commercial arbitration can accommodate diffuse and changing local, regional and global influences upon it.
We lawyers have often invoked "cultural differences" to mean a clash of legal processes-such as the different procedures used in Civil and Common Law countries. More recently, "cultural differences" have been invoked by both Civil and Common-law practitioners to criticize-with some justification-the use by U.S. attorneys of litigation-style procedures in the arbitration forum that expand the time and costs of the arbitration process....But another cultural development that has the pendulum swinging in the other direction seems to have gone virtually unnoticed. That is the growing impact of international norms on arbitration practices ... William K. Slate II, President and CEO of the American Arbitration Association, in a peech delivered on May 18, 2004, at the 17th ICCA conference in Beijing, China.[1]
Codes, laws and guidelines governing international commercial arbitration developed by such organizations as the International Court of Arbitration (ICA), the International Bar Association (IBA) and the International Chamber of Commerce (ICC) have been drafted against the background of Common Law and Civil Law values. In balancing these two great legal traditions, it was assumed that together they represent a composite legal tradition governing international commercial arbitration. The result of that assumption was decades of fine work enshrining international arbitration doctrines, principles, and rules of law and procedures that blend these two important legal traditions. From the doctrine of freedom of contract to specific rules of evidence and procedures that govern arbitral hearings, the international arbitration community has sought to maintain the respected legal traditions that lawyer-arbitrators and counsel find familiar and comfortable.
More recent concerns, partly expressed by William K. Slate II, President of the American Arbitration Association, have begun to raise such questions as: How pervasive are the Common and Civil Law traditions? Are they sufficiently uniform in nature and operation to justify their dominant status in formulating codes, laws and rules governing international commercial arbitration? And has international commercial arbitration become unduly reliant upon both the Common and Civil Law traditions at the expense of other legal traditions that operate against the background of different and changing legal cultures?
Part I of this article asks: What is a legal tradition and how should it be distinguished from a legal culture in relation to international commercial arbitration? Part II reflects on the influence of legal culture on international commercial arbitration. Parts III, IV and V investigate the Common and Civil legal traditions in relation to national, regional and international commercial arbitration. Part VI evaluates the public traditions that surround international commercial arbitration. Part VII considers whether change in the traditions of international commercial arbitration represent culture change or culture shock. Part VIII emphasizes the value of building an inclusive international arbitration tradition. Part IX suggests ways in which international commercial arbitration can accommodate diffuse and changing local, regional and global influences upon it.[2]
A legal culture is distinguishable from, and wider than, a legal tradition. Identifying a legal culture involves an analysis of the parameters of the nature, source and operation of that culture.[3]
The source of a culture may revert back to social, political and economic traditions in which that culture is grounded. For example, its source may be associated politically and economically with the advent of a constitutional democracy, and in particular with liberalism as a philosophy that impacts upon substantive legal norms like freedom of contract.[4] Or, quite differently, the source of a culture may derive from social practice, such as from an informal practice in which businessmen make “deals” over the phone, rather than by relying on strict legal forms and precedents, and lawyers.[5]
The content of a legal culture may find formal expression in a legal tradition, such as in codes, statutes and judicial decisions which are set out in the principles, standards and rules of law governing arbitration. It may also be expressed in the opinions of jurists through which that law is extolled, interpreted and applied.[6] The content of a legal culture may lead to so-called cultural determinism, as when one legal culture is perceived as determining the nature and content of other cultures, as was imputed to the “Civilizing” culture of Rome over the customary legal cultures of pre-medieval Europe,[7] or more controversially, the “Americanization” of commercial law in the Twentieth Century.[8] Finally, a transcendent legal culture may be sought around unifying attributes in different legal cultures, such as around the rule of law.[9]
The development of a legal culture may follow religious, political, or social patterns, or some combination of all three. A legal culture may also evolve out of market forces that impact upon it differently over time, place and space.[10]
The operation of a legal culture may be described in the legal literature that outlines how legal rules ought to work in theory and how they actually function in practice. A legal culture may also develop in response to social values that are attributed to law, for example, rendering the operation of law efficient, comprehensible, or fair.[11] A legal culture may be described in attitudes towards law, such as the attitudes of the international business community to the cost, impartiality and reliability of national courts of law, or the attitudes of politicians to the regulation of international business through domestic legislation.[12] Typifying social attitudes to the operation of law is William’s Slade’s depiction of American lawyers as litigious.[13]
A legal tradition is conceived more narrowly than a legal culture and in some measure is a subset of that culture. Identifying a legal tradition includes analysing the source, development and operation of a legal system itself. For example, a legal tradition may be founded upon Roman law as its primary source.[14] That tradition may be identified with specific institutional sources, such as Justinian’s Sixth Century codification of Roman law.[15] A legal tradition may also follow a determinative history, such as the evolution of Roman law into Civil Law,[16] its reception into the “modern” European law and its particularization in different national legal systems with the advent of the modern nation state.[17]
Study of a legal tradition may assist in identifying diverse sources and influences upon it, such as the influence of Canon Law upon Roman Law,[18] or the impact of the enlightenment upon Civil Law, or the fracturing of Roman Law in England and the growth of the early Common Law in the wake of William the Conqueror’s invasion of England in 1066 AD.[19]
The development of a legal tradition as it applies to international commercial arbitration may encompass a particular historical institution, such as the influence of the Medieval Law Merchant upon the evolution of modern international commercial arbitration.[20] An arbitration tradition may include an amalgam of influences, such as the impact of various European, American and Asian legal systems on the one hand and customary legal systems on the other upon contractual practices associated with commercial arbitration.[21] The development of an arbitration tradition may also include global traditions, such as the institutionalization of arbitration in international arbitration codes, laws and guidelines and the manner in which commercial arbitration is practiced in a particular region or global community generally.[22]
In some respects, the Medieval Law Merchant reflects a legal tradition among merchants that both predated and impacted modern international commercial arbitration.[23] At its most expansive, the Law Merchant was cosmopolitan in incorporating the trading practices of itinerant merchants who travelled across the then known world trading in their wares.[24] Merchant judges presided over distinctly merchant courts. They applied merchant law; and they administered that law in accordance with the customs and practices of merchants who used their services. Merchant courts also sought to arrive at merchant justice in response to the mercantile need for speedy, informal and fair justice, conceptualized as ex aequo et bono.[25] In some respects, it is in this tradition of the Law Merchant that international commercial arbitration has evolved into an alternative means of resolving disputes to national courts of law. It is also in this tradition that modern international commercial arbitration has purported to ground itself in expeditious, low cost, informal and speedy mercantile justice.[26]
However, international commercial arbitration also has a distinctly formal and public law character. Its modern traditions, for example, are reflected in the formal and public stature of the Permanent Court of Arbitration (PCA) that is responsible to resolve disputes between States, including disputes between States and private parties.[27] The traditions of the Permanent Court are clearly public, whereas the traditions of the Law Merchant were decidedly private. So too, the Medieval Law Merchant sought to resolve commercial disputes through the use of informal procedures, while procedures of the Permanent Court are decidedly more formal. At the same time, the PCA describes itself as “... perfectly situated at the juncture between public and private international law to meet the rapidly evolving dispute resolution needs of the international community.[28]
International commercial arbitration is decidedly more complex today when compared to historical variants of dispute resolution like the Medieval Law Merchant, or even the public law attributes of the Twentieth Century Permanent Court of Arbitration. Our current experience includes the growth, proliferation and partial decline of the nation state; the realignment of regional economic organizations; and ongoing tension between global free trade and the political interests of states and regional organizations in restricting that trade. Given these complexities, one may ask whether a discernible global legal culture can evolve to accommodate social, economic and political differences without being trammelled by them. One may also ask: how such a culture can resolve international commercial disputes through arbitration?
Determining the nature of a legal “culture” is difficult at the best of times. Social anthropologists identify the development of a “legal culture” with the influence which social, political and economic forces have upon its evolution.[29] However, such an analysis invites a chicken and egg debate over the extent to which social values determine legal cultures, and legal cultures influence social values. For example, to what extent do the tenets of a liberal democracy beget a legal culture that entrenches liberty of contract? Conversely, to what degree does a legal culture imbed respect for contractual promises in the culture of a society? Such discussion is inevitably circular. However, given that arbitration is grounded in party consent, learning how that consent arises in practice within discrete business communities is important in understanding how the culture of international commercial arbitration functions.[30] Understanding how law impacts on culture and culture upon law also has a significant bearing on the operation of each in relation to the other in the context of international commercial arbitration.
Some may warn against trying to understand the operation of a legal culture in international commercial arbitration largely because the operation of a culture is difficult to measure in a global cultural environment.[31] For example, in contrast with the view that American lawyers may be too litigious is the perception that the American business community often concludes business deals informally and in the expectation of that performance rather than non-performance and breach will eventuate. This latter view typifies a stereotypical view of a domestic business culture that mistrusts lawyers who devise “bullet proof” contracts that are directed more at conflict resolution than conflict avoidance. However, this view of local business culture is less plausible in a global environment in which cultural diversity complicates informal business relationships.[32] It is also difficult to detect substantial evidence of the attributes of a global arbitration culture in the handful of studies that have attempted to measure the impact of different legal cultures upon international commercial arbitration.[33] Such questionnaire and interview analyses as exist are prefaced by warnings about the difficulty to identify a reliable sample of respondents in so stratified a community as the international arbitration community.[34]
Yet another reason posed for being cautious in attempting to identify a legal culture in international commercial arbitration is in realizing that legal cultures are subject to local cultural influences which themselves change over time, place and space. Until several decades ago Japanese businesses were often depicted as being distinctly non-conflictual in their contractual relationships.[35] Stereotypical Japanese businesses relied on an epic Sixteenth Century tradition of “namawashi” by which they would help their business partners in the face of intervening circumstances beyond control, not because such acts of support formed the basis of expected subsequent reciprocity, but as the embodiment of a consensus around mutual support.[36] The problem with expanding this tradition beyond Japan’s borders lies in its stereotypical depiction, which cannot fully explicate all its variations and meanings, and the inevitable need to qualify the tradition in relation to a-typical contexts like international trade. [37] For example, the Japanese Ministry of Foreign Affairs commits itself to maintaining a peaceful and safe international trade environment; but it also undertakes to protect the profits of Japanese business.[38] Given the perception that the protection of Japanese economic interests often requires an aggressive response to intrusive foreign trade and investment parties, it is understandable that a localized tradition of non-conflictual business relations in Japan may be less fitting in relation to at least some international trade dealings.[39] So too, one may well expect organizations like the Japan Commercial Arbitration Association not only to encourage the safe conduct of international business, but also to provide processes for resolving commercial disputes in the interests of Japanese business.[40]
Given complex public and private influences on the legal culture of international commerce, one may conclude that any serious analysis of that culture is likely to be flawed. Any effort to comprehend its nature may lead to over-simplification or even misunderstanding, as when foreign lawyers and arbitrators misunderstand the influence of Japanese culture upon international business relationships. Such misunderstanding, in turn, may lead arbitrators to over- or under-appreciate the relevance of different cultures in reaching decisions.
However, erring in an attempt to gauge the genesis and evolution of cultural norms and practice surely does not justify rejecting the enterprise out of hand. Analysing legal cultures like those associated with international commercial arbitration can at least help to understand not only the attributes of those cultures, but also their disparate application in a changing global community, including international commercial arbitration. [41] By considering trends in legal cultures, one can observe the effect of cultural shifts upon the operation of legal institutions like arbitration. One can observe tendencies, practices, habits and customs that are imputed to a legal culture, as well as perceived changes in those tendencies; and one can develop measured institutional and non-institutional responses to perceptions of cultural change.[42] Illustrating such responses to cultural change in international commercial arbitration is the domestication and regionalization of international commerce, [43] the mushrooming of domestic and regional arbitration centers,[44] the development of a culture of online dispute resolution,[45] and the growth of both non-institutional and ad hoc commercial arbitration.[46] Making an effort to understand legal cultures, warts and all, can also help to model arbitral practice, to implement innovative standards of arbitral practice, and to devise responses to the changing culture among end users, such as by providing “fast track” arbitration in response to industry need.[47]
However much international commercial arbitration transcends or resists discrete cultural difference, arbitration is unavoidably effected by disparate legal culture. That influence occurs when international commercial arbitration is grounded in distinct legal cultures, such as when Civil Law influences lead to restrictions in the admission of oral testimony in arbitration.[48] Differences in legal culture among end users also lead to the development of novel arbitration services, such as the development of uniform, expedited and enforceable procedures to protect the trade marks of established businesses from infringement and from cyber squatters.[49] Whether these cultural influences arise by deliberate design or by accretion, they impact on the culture of arbitration itself. As a result, international commercial arbitration consists of a variable amalgam of legal cultures. It is not the product of a single, determinative and pre-existing arbitral culture.[50]
The ensuing sections gauge the nature of this amalgam of legal cultures. The purpose is to assess the attributes of that amalgam and how it has altered the character of modern international commercial arbitration. Particular emphasis is given to determining the extent to which arbitration is the product of cultural pluralism derived from a blend of Civil and Common Law traditions, and the degree to which that blend is itself changing in our global environment. [51]
Several issues arise here. Firstly, to what extent are the rules and practice of international commercial arbitration influenced by the legal traditions of Civil and Common Law, or by other traditions? Secondly, does that influence arise formally by incorporating those traditions directly into arbitration, or informally through their influence over arbitral conventions, usages and practices? Thirdly, to what extent is the legal tradition governing international commercial arbitration global in nature; or is it localized and regionalized under the influence, inter alia, of local and regional legal traditions?[52]
As stated above, a legal tradition ordinarily is narrower than a legal culture. A formal legal tradition reflects the genesis and development of a legal system, its norms, doctrines, principles, standards and rules of law. An example of a comprehensive legal tradition is the Western Legal Tradition that encompasses all the legal systems identified with the so-called “West”.[53] A narrower but still wide legal tradition is associated with two embodiments of that Western Legal Tradition, the traditions of the Civil and Common Law.[54] Then there are sub-sets of each tradition, such as the Common Law of England and the United States,[55] and the Civil Law of France and Germany.[56]
From the perspective of international commercial arbitration, legal traditions can also be broken down into local, regional and international traditions. Local legal traditions encompass the rules and practice of a state or local legal system, such as are embodied in a state’s commercial code.[57] Regional legal traditions include the laws and practices of regional organizations like the European Union (EU)[58] and the North American Free Trade Agreement (NAFTA).[59] International legal traditions include the various institutions adopted by a multitude of states, such as is embodied in the World Trade Organization (WTO).[60]
A stereotypical conclusion is that international commercial arbitration, along with the lawyer-arbitrators and counsel who serve it, emanates primarily from an amalgam of Civil and Common Law traditions that are unified by international organizations like the ICC.[61] Certainly there is truth to this stereotype. At a formal level, international arbitration codes, laws and practices have evolved in some measure out of Civil and Common Law traditions that are unified in part by international organizations like the ICC. Their pervasive impact upon modern arbitration is reinforced by the realization that traditional business interests served by arbitration have converged at the leading trading cities of Europe and North America where the Civil and Common Law systems prevail.[62] Consistent with this observation, premier international arbitration centers – the International Chamber of Commerce, the American Arbitration Association and the London Court of International Arbitration – are located in Paris, New York and London respectively.[63] Further imbedding Civil and Common Law influences is the fact that international commercial arbitrators and counsel alike are drawn significantly from Common and Civil Law ranks.[64] In addition, arbitrators from Latin America[65] to Japan[66] and China[67] share codes of obligations of one form or another that trace back to Civil Law roots and which form a primary source of their legal systems.[68]
The Civil and Common Law traditions, arguably, are even more global in their reach. Legal traditions in Africa, Asia and the Americas were determined by centuries of colonialism. For example, the Common Law was incorporated into legal systems across Southern, South East and South West Africa.[69] Elsewhere in Africa, in addition to the Common Law, Civil Law was implemented by colonial France, Germany, Belgium, Italy, Spain and Portugal.[70] South America, in turn, reflected predominantly Spanish and Portuguese legal traditions,[71] while the United States and Canada acquired an English Common Law heritage. A Common Law legal tradition was also introduced into India and Pakistan.[72] French and Dutch legal traditions have permeated through other parts of Asia; [73] while a German legal tradition was incorporated into Japanese and to some degree Chinese private law.[74] Then, there are states that occupy the hybrid space between Common and Civil Law traditions, Scotland, Quebec, Louisiana, Sri Lanka and South Africa, along with Israel’s combination of Common, Civil and Talmudic law.[75] Completing the circle are a host of countries whose Customary Law traditions were abrogated in whole or part following colonial incursions, and sublimated and replaced by Common and Civil Law traditions.[76]
However, it should not be blindly assumed that international commercial arbitration has simply replicated an amalgam of these traditions. As a matter of practice, Common and Civil Law traditions vary markedly from country to country, as well as over time and space. English lawyers ordinarily engage in a more rigorous formulation of legal doctrine than American lawyers who tend to treat the law in a more piecemeal fashion.[77] Civil Lawyers who follow the French tradition of the Code Napoleon[78] tend to focus less intensively on the scientific analysis of concepts like “causa” in the law of obligations than those who adhere to the more recent and scientifically textured German Code, the Bürgerliches Gesetzbuch (BGB).[79]
Relying on Common and Civil Law traditions is also insufficient to serve as the basis for the legal traditions governing international commercial arbitration in the Twenty First Century. Firstly, even if Civil and Common Law traditions were dominant globally historically, that dominance has become both “nationalized” and “regionalized” as a consequence of the advent of the modern state, the influence of local custom on the evolution of law and the development of regional free trade zones respectively.[80] So too, local legal traditions have evolved that are significantly impacted by domestic political, economic and social forces beyond their early roots in Civil or Common Law Systems.[81] The Civil Law-Common Law dichotomy also has failed to reckon with the influence of alternative political systems, notably socialist law, in which basic principles like freedom of contact are conceived and applied differently.[82] Added to this, the transformation of societies along ethnic, religious and social lines has caused radical changes in local legal traditions, placing new demands on the old economic order. Incorporated within this change is the transformation of arbitration itself to accommodate a changing political-economic landscape, such as the significant role now played by China’s International Economic and Trade Arbitration Commission (CEITAC) in international commercial arbitration.[83]
None of this is to deny the distinctiveness of Civil and Common Law traditions. Trained in a deductive legal tradition, Civil Lawyers certainly have developed important and lasting commercial codes in Europe.[84] Common Lawyers in the United States have used their inductive legal tradition to create a pragmatic Uniform Commercial Code that serves as part of a “living” and influential codification of a modern Common Law system.[85] However, the historical influence of the Civil and Common Law traditions cannot be taken too literally.[86] Not only are the great commercial codes of Europe and America subject to different constructions, they are also conceived of differently in diverse domestic, regional and international legal settings.[87] Nor does the construction of these great codes by international arbitral tribunals necessarily replicate their construction before domestic courts, given the existence of competing legal traditions, including the legal traditions associated with international commercial arbitration itself.[88]
Finally, as William K. Slate II hints,[89] international commercial arbitration cannot afford to be perceived as being wholly rooted in either a Common or Civil Law tradition any more than it can afford to be seen as dominated by an elite cadre of lawyers who imbed a fixed American or Eurocentric conception into the law of arbitration. As subtle as these perceptions of the culture and tradition of international commercial arbitration may be in our modern era of legalism, they can influence the attitudes of prospective users of alternative modes of dispute resolution not limited to arbitration, and therefore should be carefully considered.[90]
It is appropriate now to inquire: Given the amalgam of different legal traditions, can one detect a distinctively international legal tradition in commercial arbitration? And if so, what is the nature and significance of that tradition?
There are different principles by which to gauge the
legal tradition of international commercial arbitration. The first principle
is
consensual, namely, that the parties choose
arbitration.[91]
The parties are free to select the nature, form and operation of arbitration,
whether its nature is ad hoc or institutional, whether its form is
modelled on European, English, American or “other” legal traditions,
whether it
is conducted primarily through oral testimony or written submissions,
and whether it is impacted by a multi-or bilateral treaty or
by discrete
customary law influences. The parties to arbitration presumably exercise their
choices for distinctive reasons, such
as: because the arbitrators supposedly
have commercial expertise beyond that of domestic courts of law, because
international commercial
arbitration is perceived to be lower cost, more
efficient and more “party sensitive” than courts of law, or simply
to
avoid having to rely on the laws and procedures of the legal system and the
courts of one party. These reasons for resorting to
international commercial
arbitration may be misplaced, but they nevertheless are repeatedly invoked as
bases for resorting to
arbitration.[92]
A
second principle is that parties can make choices that accommodate preferred
legal traditions, while still not choosing domestic courts. For example,
they may adopt a European-centric model of arbitration, such as that of the ICC,
because it
more closely resembles Civil Law traditions, even though it is
international and does not replicate the proceedings followed by the
courts in
any one Civil Law
jurisdiction.[93]
Alternatively, parties may choose the English model of the London Court of
International Arbitration, or the American model of the
American Arbitration
Association for much the same
reasons,[94] along
with local options, such as state arbitration before the Swiss Arbitration
Association, the Australian Centre for International
Commercial Arbitration, or
China’s
CEITAC.[95] Parties
may also choose to “domesticate” arbitration, such as by appealing
to local customary laws and
procedures.[96]
A third principle is that the manner in which arbitration is conducted may reflect in varying degrees a particular legal tradition and more broadly, a preferred cultural orientation. For example, the influence of the ICC Court in determining the form, content and authority of each ICC award reflects a tradition in which uniformity, consistency and authoritativeness in decision-making is prized.[97] One may conceive of this legal tradition as international, and the ICC is certainly international. However, the ICC also has a legal tradition that reflects many Civil Law values, including: an ethical approach towards the analysis of law; a scientific method of law making; an emphasis on principled decision-making and a deductive method of reasoning adopted by the Court.[98] This tradition can be contrasted to varying degrees with that of the American Arbitration Association in which decision-making is more piecemeal and ad hoc, where there is no unifying influence of an ICC-like Court, and where inductive reasoning from particular facts to general rules predominates in arbitral jurisprudence.[99] A further tradition may be found in arbitration in China before CEITAC in which disputes with state enterprises, a blend between domestic and international rules and procedures and the influence of local custom on the enforcement of arbitral awards, are prevalent.[100]
A fourth principle is that particular procedures associated with international commercial arbitration stand out more starkly when they are modelled on a particular legal tradition. For example, all other factors being constant, one may well expect to encounter less reliance on oral testimony before arbitration tribunals like the ICC that before an association like the AAA in which the examination and cross-examination of witnesses, including experts is often extensive.[101]
A fifth principle is that variations in the services provided by international commercial arbitration inevitably are impacted by the customer. The London Court of International Arbitration crisply states: “Changes in commercial dispute resolution procedures are, quite properly, driven by the end-user. That is, by the international business community.”[102]
All these statements are generalizations. For example, ICC arbitration in the United States involving American counsel unavoidably incorporates at least some attributes of American-style advocacy, not least of all the adversarial tendencies of some litigators who litigate and arbitrate cases in cities like New York. Conversely, European and South American trained arbitrators who serve on AAA panels in the United States often add a distinctly civilian flavour to those proceedings, for example when they insist that the parties rely less upon oral testimony and have greater resort to written pleadings.[103] Negative stereotypes are also often unduly attenuated. For example, despite the traditional criticism that CEITAC subsumed international commercial arbitration within its domestic political and legal system, CEITAC has modified its rules and procedures specifically in order to comply with international arbitration standards.[104] Generalizations about international commercial arbitration also fail to recognize the complex array of cultural influences that are exerted upon it. Just as the international business community has much to do with the changing legal traditions of international commercial arbitration, so too do different governments, arbitration centers and even individuals have much to do with changes in these traditions.[105]
The trumpeted achievements of international commercial arbitration sometimes serve as its limitations. For example, the eminently commendable principle by which national courts recognise and enforce arbitral awards – a suitable response to the vagaries of forum shopping -- is undermined when awards that are set aside in one national jurisdiction are enforced in another.[106]
Nevertheless, the tradition of international commercial arbitration does enjoy remarkable stability, despite its diffuse nature, form and expression. It has been able to model itself on the stable public image of such respected tribunals as the Permanent Court of Arbitration.[107] It has benefited from the authority accorded to arbitration awards by the New York Convention on the Recognition and Enforcement of Foreign Arbitration Awards.[108] The tradition of international commercial arbitration has also been adapted to changing market forces, most notably by crafting modified arbitration services to end users.[109]
At the same time, the legal traditions of international commercial arbitration today are diffuse in nature. Their diffusion stems, not only from their disparate Civil and Common Law roots, but from the proliferation of arbitration associations and the particular influence of those who devise arbitral rules and procedures, serve as arbitrators, and act as counsel in arbitration proceedings.
The questions remains: How can one encapsulate a legal tradition of international commercial arbitration in the face of diverse arbitration rules, procedures and practices?
A study of the rules of arbitration of different international, regional and local associations reveals that, while commercial arbitration has attributes of a pervasive legal tradition, the rules and procedures through which that tradition are expressed diverge noticeably from one arbitration association to the next.[110] Illustrating this wide range of services provided by different arbitration associations is the plethora of arbitration clauses, procedures and evidentiary rules adopted by each.[111]
This diversity – some would argue, inconsistency -- in arbitral practice across the global arbitral community does not imply that the legal tradition surrounding international commercial arbitration is either convoluted or a sham. A set of arbitration rules and procedures directed at parties within NAFTA jurisdictions ought surely to be different from the rules and procedures that apply to parties within EU jurisdictions. One can debate the nature, extend and value of those differences, but it would be an error to insist, as a matter of principle, that rules and procedures in international commercial arbitration should be uniform in nature.[112]
The point is also not that a legal tradition of international commercial arbitration should resist uniformity any more than it should replicate the already over-generalized traditions of the Civil or Common Law. The point is that, inasmuch as international arbitration proceedings transcend proceedings before national courts, its traditions should differentiate it from those national law traditions.[113] A further point is that an international arbitration tradition may well warrant having diverse constituent parts, not only because arbitration associations should be free to market their distinct services, [114] but because parties should be free to choose different arbitration options based on their discrete circumstances and their free choice.[115] Similarly, parties ought to be able to choose among arbitration associations accordance to their perceptions of the expertise of the association, its reputation, its rules and procedures, the quality of its roster of arbitrators, its costs, and its record of having its awards recognised and enforced in particular foreign jurisdictions.[116] At the same time, the more expansive and complex the choices available to the parties, the greater is the potential for one party to pressure another to acquiesce in preferred arbitration rules and procedures, as when those rules closely resemble the dominant party’s domestic rules and procedures.[117]
One might ask at this point: In what respects is the tradition of international of international commercial arbitration supported by a distinctively international tradition?
International commercial arbitration has evolved
primarily against the background of two unifying international
traditions: the private international legal tradition directed at the
harmonization of laws; and the public international law tradition
committed to
reducing global barriers to trade, including more recently to protecting the
interests of developing countries.
The harmonization movement is most
readily identified with the adoption of the United Nations Convention on
Contracts for the International
Sale of Goods (CISG) in
1980.[118] Not only
did the CISG establish a comprehensive code governing the formation of
international sales contracts, including remedies:
it also helped to shepherd in
an international harmonization movement that continues to regulate the
application of contract rules
to international sales transactions. Such
harmonization, in turn, has provided a foundation stone not only for the
formation and
performance of contracts, not limited to sales, but also for their
non-performance and breach. It is in this latter respect that
parties choosing
international commercial arbitration have had the benefit of a comprehensive
body of law that transcends national
law and domestic courts, that has evolved
into transnational jurisprudence, and that allows for the legal analysis of an
international
corpus of law. That jurisprudence is most evident in
international codifications of the law of arbitration itself, notably, the
Model
UNCITRAL Law of International Commercial
Arbitration.[119]
Key among the public law successes of the international community is
the 1948 General Agreement on Tariffs and Trade, the GATT, which sets out a
framework
for reducing barriers to international trade. The GATT was followed
in 1993 by the Uruguay Round which established the World Trade
Organization, the
WTO. The WTO, in turn, has set out important principles governing trade among
member states as well as establishing
various WTO
agreements.[120]
These international trade agreements have demonstrated, not only the capacity of
the international commercial community to redress
the disparate interests of
states in reducing barriers to global trade. They have helped to create a
global climate that supports
private trade and investment in goods and services,
including for the benefit of developing
countries.[121] In
this respect, international commercial arbitration has the capacity to respond
to a widening array of business disputes that
arise out of increased trade
across national boundaries, most recently under the General Agreement on Trade
in Services
(GATS).[122]
Tthe more recent growth of bilateral trade and investment treaties do
challenge the vitality of multilateral trade system and place
distinct strains
on the WTO.[123]
However, that development also heralds prospective change in the conduct of
global business by corporations and individuals, notably
in compartmentalizing
disputes and their solutions along bilateral
lines.[124] As a
result, a new regime of international commercial arbitration grounded in the
particular interests of states is evolving alongside
multilateral trade and
responding to discrete business disputes. In some measure, this bilateralism
supports international commercial
arbitration, as when the NAFTA expressly
provides for Chapter 11
arbitration.[125]
Article 2021 exhorts the NAFTA Parties “to encourage and facilitate the
use of arbitration and other means of alternative dispute
resolution” to
resolve disputes between private parties in the NAFTA
zone.[126] Trade
agreements like the NAFTA are likely to lead to an increased volume in trade and
investment across national boundaries, a
greater number of disputes from that
trade, and increased use of international commercial arbitration to resolve
those disputes.
Despite the fragmentation of global trade along bilateral and regional lines, international commercial arbitration has remained a vital, yet adaptable, constant in the world trade equation. Not only have many states adopted the New York Convention on the recognition and enforcement of foreign arbitration awards, they have also adopted the Convention on the Execution of Foreign Arbitral Awards.[127] While studies still suggest that a minority of international arbitration awards are not executed in full, the rate of successful executions remains significant in an otherwise diffuse -- and somewhat bilaterally focused -- global community.[128]
The question remains: Can international commercial arbitration adjust culturally to meet the future needs of a new economic and political world order?
Emanating from diffuse economic, social and political environment, parties contemplating international commercial arbitration today can choose from a range of sophisticated instruments that suggest what, when and how to arbitrate disputes. They can choose arbitration forums and rules based on the perceived stability of the applicable arbitral systems, the development of their jurisprudence and their record of successfully concluded and enforced arbitrations.[129] Parties can also choose from an increasing number of national and regional arbitration centers that accommodate different legal traditions and respond differently to disparate legal cultures.[130] They can adopt a variety of arbitration clauses, duly adapted to meet their particular needs.[131]
Cultural change is also taking place in the international arbitration services that are now provided, including the noticeable growth of specialised areas of arbitration, in sport and intellectual property arbitration, among others.[132]
In addition, parties are not only able to make choices among different types of international commercial arbitration. They can tailor those choices to their own diverse needs and preferences. For example, parties were always free to choose non-institutional or ad hoc arbitration.[133] However, they often found doing so burdensome due to difficulties in gaining access to neutral premises for non-institutional arbitration and the comparative lack of pre-existing rules and procedures by which to conduct ad hoc arbitration.[134] International commercial arbitration associations today provide, not only for institutional arbitration based on their own rules and procedures, but for non-institutional and ad hoc arbitration as well. For example, non-institutional arbitration, previously provided by only a few regional centers like the British Columbia International Arbitration Centre,[135] now is also provided to varying degrees by mainstream international centers.[136] The result is that parties can adopt a cafeteria style approach, opting to use the facilities of a particular arbitration association, selecting which rules, procedures and regulations to adopt, choosing from an assortment of sample model arbitration clauses, and accessing the association’s panel of arbitration experts for arbitrators that they sometimes can hire independently of the association.[137] Certainly there are risks to arbitration associations providing non-institutional services, particularly when parties who otherwise might have opted for full services from the association instead choose limited cafeteria services. There is also the risk that a dominant party may pressure the other party into accepting a cafeteria approach that favors the former. However, if international commercial arbitration is to accommodate new needs – along with the changing culture of prospective parties – than this shift to cafeteria style arbitration is a sensible response to a global marketplace in arbitration services, notwithstanding these risks.
International commercial arbitration has also entered the global culture of the Internet.[138] A few arbitration associations provide all their arbitration services online, such as the resolution of domain name disputes under the auspices of the World Intellectual Property Association (WIPO).[139] Mainstream local, regional and international arbitration associations also offer various online services, including online resources and the ability to file cases online, carefully protected by sophisticated and pass-protected gateway services.[140] With a global community that is reliant on the services of the Internet, such changes in international arbitration services are inevitable. It is also likely that we have just seen the tip of the proverbial iceberg in that changing cultural landscape.[141]
There is also evidence that arbitration centres that were once regarded with suspicion in the international business community, are becoming not only more competitive, but also readier to provide transparent services and enforceable results. Criticisms directed at CEITAC, as being wholly China-centric are less supportable today as CEITAC has modernized its rules and procedures to accommodate the needs and interests of a stratified global business community.[142]
Finally, centers that are directed primarily at providing arbitration education have evolved to assist parties to decide whether and how to use arbitration, varying from advising them on how to draft arbitration clauses and choose arbitrators to how to form realistic expectations about the time and costs involved in arbitrating disputes.[143]
International commercial arbitration will face ongoing cultural challenges, not least of all arising from disparate regional practices and procedures, and the choice of inappropriate arbitration institutions or procedures.[144] While it is not always easy for parties to know the full extent of the complexity and cost of arbitration, it is important that arbitration not be perceived to be unduly complex or costly by those who might otherwise use its services. Added to this is the need for international arbitration to take account of a range of growing impediments to the efficient resolution of disputes: the distance of arbitrators from the situs, the hazards associated with international travel, and the psychological and physical impediments to holding even preliminary hearings by video link. These barriers are most serious when prospective users of arbitration view them as the source of increased cost and delay in the rendering of awards.
Again, the culture of arbitration has changed to cater to these concerns. For example, some regional arbitration associations stress their ability to deliver low cost and speedy arbitration services. They provide online services and expedited procedures; they use local and regional arbitrators who are readily accessible; and they partner with other international arbitration to mutual advantage.[145] Again, “localization” and “regionalisation” of arbitration is neither good nor bad in itself. It is simply evidence of arbitration reacting to new opportunities. It is also part and parcel of an unfolding shift in the culture of international commercial arbitration itself.[146]
Several key questions remain: Is the culture surrounding international commercial arbitration potentially exclusionary of other cultures? If so, how might such exclusion be evaluated and where appropriate, remedied?
For William Slate II, President of the American Arbitration Association, arbitrating in the United States suffers from the perception that American lawyers are too litigious.[147] Slate also appreciates the mistrust of institutions that are perceived as being unduly influenced by a legal tradition of adversarialism. He nevertheless finds solace in the view that the American business increasingly situates commercial disputes in the global context of arbitration.[148]
The problem of cultural myopia, however, is larger than William Slate acknowledges. It is also bigger than wooing Chinese business to international commercial arbitration and to the AAA in particular. Part of the problem lies in the failure of international arbitration properly to accommodate legal traditions and cultures that diverge from its own pre-existing cultural norms and contributing legal traditions.[149] Yet another part of the problem lies in the growing trend to “domesticate” arbitration in somewhat disparate ad hoc proceedings and thereby to decentralize both the culture and the tradition of international arbitration.[150]
Take the situation of international commercial arbitration in Africa. As articulated above, different parts of Africa readily fell under the colonial rubric of Civil and Common Law traditions. Whether these traditions derived from conquest or settlement or both, different African countries have adopted variants of English, French, Dutch, German, Belgian, Portuguese, Spanish or Italian Law.[151] One can debate endlessly to what extent these colonial incursions gave rise to pure, or impure, variations of Common or Civil Law. One can also discuss at length the influence of customary practice upon the legal traditions of a multitude of African countries. But none of these debates address the central issue: that the current incantation of international commercial arbitration, whether Common or Civil Law in genesis, may be inadequate to satisfy the needs of many African environments. In particular, modern international commercial arbitration came of age in the latter half of the Twentieth Century in the great cities of Europe and America.[152] Neither African nor Asian countries participated much in its evolution. With few exceptions, African countries could not then – nor indeed now – boast of having large cosmopolitan commercial cities in which international commercial disputes could be resolved. Key attributes of international commercial arbitration were not easily satisfied in African jurisdictions in which difficulties of access and procedural delays were common place compared to cosmopolitan venues elsewhere to which arbitrators, parties and witnesses had easy access.[153] Many African cities were also considered unsuitable as arbitration venues due to the perception that they were economically, socially and politically unstable.[154] Lines of communication to and from African destinations were viewed as slow and susceptible to disruption. Some African cities still face difficulties of access; and legal practice there often is marginal when compared to practice at venues in London, New York and Paris. The African Continent in general also lacks a critical mass of established international commercial lawyers who practice as counsel or arbitrators in arbitration proceedings.[155]
Despite all this, Africa is a part of the global community. It has political power by virtue of its combined voting strength in international and regional trade organizations. It has economic importance, inter alia, in the export of agricultural goods and the import of durable consumer goods; and it is a testing ground for the principle that freedom to trade is inextricably linked to the equitable distribution of wealth.[156]
One might respond by indicating that African business is but a fraction of the business of international commercial arbitration, and that African interests are insufficiently important to justify overhauling the entire arbitration system. One might add that it is unwise to modify the character of international commercial arbitration in the absence of a pressing universal need. However, the same might have been said about much of Asia thirty years ago that was similarly marginalized as a locus for arbitration.[157] Today, arbitration recognises the considerable importance of Asia, not least of all China, to the truly global character of international dispute resolution. One cannot say the same of Africa at this time, and to some extent South America and the Middle East,[158] although arbitration in the last mentioned case has grown in importance with the advent of major oil related disputes.[159] One can say that international commercial arbitration needs to be vigilant so as to avoid being dubbed culturally myopic in times of change.
One reaction is that international commercial law is already all about customary legal traditions, including the customs, usages and practices of a diverse international business community. This is true: international arbitration is closely intertwined with the incorporation of business practice into a “modern” Law Merchant that is directed at the efficient resolution of business disputes.[160] However, the significance of local customs is not always made clear in arbitration proceedings. Nor does the examination and cross-examination of witnesses invariably make those customs clear. At the same time, it is important that arbitrators take account of local customs in reaching awards that comply with law, while also being fair to the parties.[161]
Nor is the problem of international commercial arbitration failing to take account of customary law limited to ignoring customs in developing countries. Consider, for example, the significance of custom in relation to property law in investment arbitration under Chapter 11 of the NAFTA. Property is peculiarly influenced by the custom of the locus. Chapter 11 of the NAFTA deals at length with the rights and duties of the parties in the event of an expropriation of property, but deals only cursorily with the concept of property itself.[162] The Chapter presumes that international standards will give content to property law, even though those international standards are poorly defined and unevenly applied across domestic legal systems.[163] As a result, arbitrators who are appointed under Chapter 11 of the NAFTA might be called upon to decide the legal consequences of a government taking, without significant guidance on the standard of property to apply.[164] They might respond by incorporating local conceptions of property law into their analysis, or by treating those conceptions as extraneous. Alternatively, they might identify a gap or casus omissus in Chapter 11 in relation to property and purport to fill it. However, if arbitrators are to fill gaps in intergovernmental agreements, to what extent they can rely upon their own backgrounds and proclivities rather than authoritative international sources? One possibility is for Chapter 11 arbitrators, as for arbitrators appointed under other regional and bilateral trade agreements such as the Free Trade Association of the Americas (FTAA), to engage in selective arbitral activism.[165] For example, they might follow the European Court of Human Rights by adopting a “general margin of appreciation” doctrine, relaxing the technical application of Chapter 11 in order to “appreciate” different domestic conceptions of property. Such appreciation might provide arbitrators with a contextual “margin” in which to assess cultural differences in the conception and application of property law.[166]
However, the process of injecting principles like the “margin of appreciation” into international commercial arbitration will not be easy. Arbitrators still need to assess the distinctiveness of a local custom, to appreciate how that distinctiveness ought to be considered in an arbitration setting, and to comply with the applicable law while also being fair to the parties.[167] Nor should one expect arbitrators summarily to introduce revitalized conceptions of amiable composition and ex aequo et bono into general arbitral practice under the rubric of doctrines like “the margin of appreciation”, without considering the risk of being challenged on grounds of acting contrary to law.[168] International arbitrators ultimately need to demonstrate their capacity to accommodate customary change, while also acting in accordance with law. [169] With powers come responsibilities.[170]
National, regional and international arbitration centers have become increasingly sophisticated in the range of arbitration services that they provide to an increasingly savvy business clientele. These centers are driven somewhat by the need to satisfy the interests of an ever-widening array of parties who have ready access to informed sources, including at various sophisticated arbitration websites. International arbitration associations also increasingly respond to competition from ad hoc and non-institutional arbitration by providing facilities for ad hoc and non-institutional proceedings, while continuing aggressively to market their own arbitration clauses and services. How this tension between institutional and non-institution arbitration will play out remains unclear. However, the legal culture driving international commercial arbitration is expanding to accommodate, not only new arbitration providers, but also new types of parties with different cultural and political roots. Included among these new parties are those from socio-political environments that used to decry arbitration, notably China during earlier incantations of its cultural revolution, but which has since adopted its own variant of international commercial arbitration.
By its very nature, international commercial arbitration services sometimes fall short of the central tenets of arbitration: to provide a time and cost efficient alternative to domestic courts of law. Legal cultures surrounding international commercial arbitration have grown both more diffuse and more complicated in operation, while arbitral institutions sometimes have failed to adapt to the demands of changing markets for their services. International commercial arbitration needs to address those legal cultures and traditions which arbitration ignored historically, but which now carry far greater political and economic weight. The warning message, following William Slate is that to ignore these legal traditions and cultural influences will be at the peril of arbitration itself.
This is not to suggest that international commercial arbitration has stood still. Significant progress has been made by local, regional and international organizations at demystifying arbitration. Information is increasingly available that explains to parties how arbitration works, including answers to frequently asked questions about the process, as well as the cost and time involved in arbitrating commercial disputes.[171] There is also an impressive body of online databases that clarify what, when, how and where to arbitrate, along with the inclusion of a host of conventions, codes, laws, rules and practices on international commercial arbitration.[172] The Internet has also spurned high-end information sites that provide both original materials and useful commentary, including the most recent books and articles, speeches, notes and comments on arbitration.[173]
Despite these developments, international commercial arbitration is unlikely to be a panacea for all the dispute resolution needs of the global community. The most formidable threat to arbitration remains that it is sometimes perceived as being insensitive to the interests of important prospective users. It is this threat that needs to be creatively and decisively addressed if international commercial arbitration is to thrive. In the words of William K. Slade II, President of the AAA:
We need to recognize cultural prejudices and be sensitive to cultural traditions lest we unintentionally offend our real and would-be friends. At the same time, we need to pay attention to culturally induced personal behaviors of our own that could be perceived in an unflattering light.[174]
* S.J.D. Harvard; Immediate Past Dean and Professor of Law, Faculty of Law, University of New South Wales, Sydney, Australia My thanks to Stewart Macaulay of the Wisconsin Law School for his insight, Bryan Mercurio, Beverly Moran and Nick Ranieri for their comments on an earlier draft, and the University of New South Wales for funding this study. A particular debt of gratitude is owed to fellow arbitrators on the panels of the American Arbitration Association (AAA), the North American Free Trade Agreement (NAFTA), the International Chamber of Commerce (ICC) and London Court of International Arbitration (LCIA), among others, for inspiring me to write this article.
1 The speech, “Culture
Connection in International Commercial Arbitration”, is reproduced in the
Dispute Resolution Journal
(August-October 2004) and at http://www.findarticles.com/p/articles/mi_qa3923/is_200408/ai_n9431844.
See too the website of the International Council for Commercial
Arbitration [ICCA] at
http://www.arbitration-icca.org/directory_of_arbitration_website.htm
[2] For background
material on the nature of international commercial arbitration, see Larry
Edmonson & Gabriel M Wilner. eds., Domke on Commercial Arbitration,
3rd. St. Paul, MN: Thomson/West, 2003-, also available on Westlaw
(DCMLARB, eds. Stepan N. Frommel & Barry A. K. Rider; Pieter Sanders,
"Arbitration", in Int’l. Encycl. Comp. Law (Tübingen: J.C.B.
Mohr (Paul Siebeck); Dordrecht: Martinus Nijhoff Publishers, 1996);Thomas H.
Oehmke, International Arbitration 3d. Ed. (St. Paul, MN: ThomsonWest,
2003); Conflicting Legal Cultures in Commercial Arbitration: Old Issues and
New Trends (The Hague; Boston: Kluwer Law International, 1999); Pieter
Sanders, Quo Vadis Arbitration? Sixty Years of Arbitration Practice, A
Comparative Study (The Hague; Boston: Kluwer Law International, 1999); W.
Laurence Craig, Trends and
Developments in the Laws and Practice of International Commercial
Arbitration (Paris, Coudert Brothers, 1995); Merton E. Marks, New Trends
in Domestic and International Commercial Arbitration and Mediation (2000),
at http://www.cidra.org/articles/newtrends.htm;
International Arbitration Institute, at
http://www.iaiparis.com/. For a useful
biography of materials on international commercial arbitration, see Jean
M. Wenger, International Commercial Arbitration: Locating the Resources
revised ed.., at http://www.llrx.com/features/arbitration2.htm#Locating%20Literature.
[3] See
generally, Roger Cotterrell, The Concept of Legal Culture,
Chapter 1 in David Nelken, ed., Comparing Legal Cultures,
13-31(Aldershot: Dartmouth Publishing Company, 1997); Alan Watson, Legal
Change: Sources of Law and Legal Culture 131 U. Pa. L.Rev.1121 (1982).
See too Clifford Geerz, The Interpretation of Cultures: Selected Essays
(Basic Books,
1973).
[4] See
Jean-Jacques Rousseau, The Social Contract (1762), available at http://oll.libertyfund.org/Home3/Book.php?recordID=0348;
Michael J. Trebilcock, The Limits of Freedom of Contract (Cambridge,
Mass.: Harvard Un. Press, 1994); Roscoe Pound, Liberty of Contract, 18 Yale Law
Journal 454 (1909). See too Leon E. Trakman Contracts: Legal, in
International Encyclopaedia of the Social and Behavioral Sciences, Vol.3.8/102
(Oxford: Elsevier Pub., U.K.,
2001).
[5] Perhaps
the most influential school of thought on these propositions is the “law
and society” movement in the United
States. Their rationale is that
significant segments of the American business community place primacy on
informal methods of concluding
business deals – typically over the phone
or coffee, or on the golf course – rather than rely on lawyers and formal
contracts
that include dispute resolution clauses. The rationale of leading
figures like Stewart Macaulay is that businesses operate somewhat
in the hopeful
expectation that the informal deal that anticipates performance with be more
beneficial – and less costly –
than the form contract that stresses
the risk of non-performance and breach. For now classical commentary, see
Stewart Macaulay, Macaulay, Non-Contractual Relations and Business: A
Preliminary Study, 28 Am. Sociol. Rev.55 (1963). See too
Stewart Macaulay, Elegant Models, Empirical Pictures, and the
Complexities of Contract, 11 Law & Soc. Rev. 507 (1977); Stewart
Macaulay, An Empirical View of Contract, 1985 Wis. L. Rev. 465;
Macaulay, Freedom From Contract: Solutions in Search of a Problem? 2004
Wis. L Rev.777.
[6]
There are a myriad of books and articles on the interpretation of law. A few
very different comments on interpretation of law include:
Antonin Scalia, A
Matter of Interpretation: Federal Courts and the Law (Princeton Un. Press,
1998); J Wróblewsk, The Judicial Application of Law (Kluwer
Academic, 1992); Ronald Dworkin, Law as Interpretation, 9 Critical
Inquiry 179
(1982).
[7] See
James L. Gibson and Gregory A. Caldeira, The Legal Cultures of
Europe, 30 Law and Soc. Rev.55 (1996).
[8] See
Wolfgang Wiegand, Americanization of Law: Reception or
Convergence? In Legal Culture and the Legal Profession, infra
note 8.
[9]
See generally, Paul H. Haagen, ed., Arbitration Now: Opportunities for
Fairness, Process Renewal and Invigoration (New York: American Bar
Association Section of Dispute Resolution, 1999). For a World Bank perspective
on global trade and the rule
of law, see http://www1.worldbank.org/publicsector/legal/ruleoflawandevelopment.htm.
See too infra note 17.
[10] Ehhard
Blankenberg, Patterns of Legal Culture: The Netherlands Compared to
Neighboring Germany, 46 Am. J. Comp. Law 1
(1998).
[11] See
Tahirih V. Lee, Risky Business: Courts, Culture, and the Marketplace, 47
U. Miami L.Rev.1335 (1993); Ugo Mattei, Efficiency in Legal Transplants: An
Essay in Comparative Law and Economics, 14 Intl. Rev. Law and Econ.3
(1994).
[12] On
international commercial arbitration and the courts, see Hans Smit &
Vratislav Pechota, ed. International Commercial Arbitration and the
Courts (Revised 3rd Edition. Huntington, NY: Juris Publishing,
2002).
[13] For reflections on legal
culture, notably the adversarial legal culture in the United States, see
Legal Culture and the Legal Profession (Eds: Lawrence M. Friedman and Harry
N. Scheiber (Boulder: Westview Press, 1996). See generally, Lawrence M.
Friedman, Is There a Modern Legal Culture? 7 Ratio Juris 117
(1994); Lawrence M. Friedman, The Concept of Legal Culture: A Reply,
Chapter 2 in Nelken, David, ed. Comparing Legal Cultures 33-39
(Aldershot: Dartmouth Publishing Company, 1997); John Fellas, Chair,
International Business Litigation & Arbitration (New York, NY:
Practising Law Institute, 2000); Joseph M. Lookofsky, Transnational
Litigation and Commercial Arbitration: A Comparative Analysis of American
European and International Law (Ardsley-on-Hudson, NY: Transnational Juris
Publ., 1992). But see Herbert M. Kritzer, Propensity to Sue in
England and the United States of America: Blaming and Claiming in Tort
Cases, 18 J. Law and Soc. 400
(1991).
[14] See
Henry John Ruby, Roman Private Law in the Times of Cicero and of the
Antonines (Ann Arbor, Michigan: Un.Mich.Press, 2006).
[15] See Alan
Watson, ed., The Digest of Justinian 2 vols. (revised English edition,
Philadelphia, PA: Un. Penn. Press,
1998).
[16] On the reception of Roman Law
into the Civil Law Systems of Europe, see e.g. John Henry Merryman, The Civil
Law Tradition 2nd ed (Stanford, CA: Stanford Un Press, 1985); Peter Stein,
Roman Law In European History (Cambridge: Cambridge Un. Press, 1999);
O.F. Robinson et al., An Introduction to European Legal History: Sources and
Institutions (Abingdon, 3rd ed. 2000); H. Hausmaninger, The Law of
Obligations: Roman Foundations of the Civil Tradition (Oxford: Oxford Un.
Press, 1990).
[17]
See Karen J. Alter, Establishing the Supremacy of European Law: The
Making of an International Rule of Law in Europe (Oxford: Oxford Un. Press,
2001).
[18] On the
evolution of the Civil Law tradition, see supra note 16. On the
development of the law of obligations [including contract law] in Civil Law
systems and differences between French
and German legal systems, among others,
see Reinhard Zimmermann, The Law of Obligations: Roman foundations of
the Civilian tradition (Oxford University Press, 1990); Reinhard
Zimmermann, Good
Faith in European Contract Law (Cambridge: Cambridge Un. Press,
2000)
[19] On the
development of the Common Law tradition, see George Williams Keeton,
The Norman Conquest and the Common Law (Barnes and Noble, 1966); Theodore
Frank Thomas Plucknett, A Concise History of the Common Law
(London: Butterworths,
1936).
[20] See
Leon E. Trakman, The Law Merchant: The Evolution of Commercial Law
(Littleton, Colorado: Fred B. Rothman,
1983).
[21] This
interface between Civil Law and customary practice, for example in the use and
non-use of contract law, is apparent in the law
of obligations of Japan, see
e.g. W. Gray, The Use and Non-use of Contract Law in Japan, in
Law and Society in Contemporary Japan: American Perspectives 243-262
(Dubuque, Iowa: Kendall Hunt, 1988); Zentaro Kitagawa, Use and Non-Use of
Contracts in Japanese Business Relations: A Comparative
Analysis in
Harold Baum, ed., Japan: Economic Success and Legal System 145-165
(Berlin; New York: Walter de Gruyter., 1997); Teruo Doi, International
Business Transactions: Contract and Dispute Resolution, (Tokyo: The
Institute of Comparative Law, 1966).
[22] On the
globalisation of international commercial arbitration, see Katherine
Lynch, The Forces of Economic Globalization: Challenges to the Regime of
International Commercial Arbitration (The Hague; New York: Kluwer Law
International,
2003).
[23] See
Leon E. Trakman, The Medieval Law Merchant, 12 J. Maritime Law &
Commerce 1 (1980).
[24] Ibid.
In encompassing the legal traditions of merchants, the Medieval Law Merchant
included norms, principles and rules of behaviour that
governed particular kinds
of merchant classes, as distinct from the local populace. In that sense, it
transcended the influences
of local princes and kingdoms, while also being
associated with particular trades located at market towns and trade
fairs.
[25] See
text accompanying notes 168 & 169.
[26] The
conception that the Medieval Law Merchant was wholly uniform in nature, wholly
insulated from the legal influence of local princes,
and evolved in response to
the needs of itinerant merchants is perhaps overstated. See Leon E.
Trakman, From the Medieval Law Merchant to E-Merchant Law, 53 Toronto
L.J.265
(2003).
[27] See http://www.pca-cpa.org/ Again, these
statements in the text are generalizations; but for the most part they are also
apparent on examination of the operation
of the Medieval law Merchant, supra
note 20, compared to the operation of the Permanent Court, See infra
Section VI.
[28] The PCA adds:
“Under its own modern rules of procedure, which are based upon the highly
regarded and widely used UNCITRAL Arbitration
Rules, the PCA administers
arbitration, conciliation and fact finding in disputes involving various
combinations of states, private
parties and intergovernmental organizations. Not
only do states more frequently seek recourse to the PCA, but international
commercial
arbitration can also be conducted under PCA auspices.” Cited at
http://www.pca-cpa.org/
[29] On the social
anthropology surrounding legal cultures, see e.g. Austin Sarat &
Thomas R. Kearns, eds., Law in the Domains of Culture, (Ann Arbor,
Michigan: Michigan University Press,
1998).
[30] On
arbitration in relation to complex international contracts, see e.g.,
Joachim G. Frick, Arbitration in Complex International Contracts (The
Hague; New York: Kluwer Law International,
2001).
[31] See
generally on such debate in relation to the judicial system, Legal Culture
and Judicial Reform at http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/LegalCultureBrief.pdf
[32] This is not
to deny that international business has established informal mechanisms by which
organizations can reach agreements and
resolve differences with one another. It
is simply to note that these mechanisms are likely to be more culturally
complex, all other
factors being constant, than in domestic business
relationships. On the depiction by members of the Law and Society movement of
an informal approach by businessmen towards contracts in the United States,
see supra note 5.
[33] See e.g.
Richard W. Naimark & Stephanie E. Keer, Post-Award Experience in
International Commercial Arbitration, Dispute Resolution Journal (Feb-Apr
2005). In conducting a questionnaire study specializing in international
commercial arbitration, the authors reported: “The survey
was administered
to the claiming/filing party. We were able to gather data on 118 cases where the
claiming/filing party indicated
that the award was complied with, at least in
part. Of those 118 cases, 18 represented matters in which the claiming/filing
party
lost the case. For the 100 cases where the claiming/filing party declared
itself to be the winner in the case, 74 awards were complied
with in full, 4
were partially complied with, and 22 were renegotiated-post award-to establish
final settlement terms. For some time
we have been aware of discussions about
post-award [spelling] negotiations which resulted in alterations to the terms of
the award.
But prior to this survey, we were uncertain whether any or many such
cases would surface. It appears that, while not predominant,
renegotiation of
the terms of the awards is also not
rare.”
[34]
Ibid. For example, the authors acknowledged limitations in their
questionnaire study, in particular that their sample was
“non-random”
and included only data for those parties to
arbitrations who agreed to answer their questionnaire. For a questionnaire on
the recognition
and enforcement of foreign judgements in Russia, see http://www.iln.com/articles/pub_267.pdf
[35] See
generally Luke Nottage, Japanese Contract Law, Theory and Practice,
in, Veronica Taylor, ed. Asian Laws Through Australian Eyes
(Sydney: LBC Information Services, 1997); Luke R. Nottage, Contract Law
and Practice in Japan: An Antipodean Perspective in Japan:
Economic Success and Legal System 197-223 (Berlin; New York: Walter de
Gruyter, 1997). The practice of “namawashi” is also peculiar to the
internal management
of a Japanese business, and includes an emphasis on
consensus among staff in reaching decisions, notably with the involvement of
junior management. See e.g. J.R. Martin, R.C. Schelb and J.C. Sparling,
Comparing the Practices of U.S. and Japanese Companies: The Implications for
Management Accounting, J. Cost Management 6 (Spring
1992).
[36] See
e.g., Zentago Kitagawa, Use and Non-Use of Contracts in Japanese Business
Relations: A Comparative Analysis, in Harold Baum, ed., Japan:
Economic Success and Legal System, (Berlin; New York: Walter de Gruyter,
1997)
pp.145-165.
[37] In
recent decades, however, Japan has witnessed a significant increase in reliance
on law in domestic not only international business
relations. Japanese law
schools have sprouted up across the country; the role of lawyers in Japanese
society has increased markedly;
and Japanese contract lawyers are ever more
present in domestic commerce. See generally supra note 35.
[38] The
mission of the Japanese Ministry of Foreign Affairs is “to aim at
improvement of the profits of Japan and Japanese nationals,
while contributing
to maintenance of peaceful and safe international society, and ...both to
implement a healthy international environment
and to keep and develop harmonious
foreign relationships.” See http://www.mofa.go.jp/about/index.html
[39] Illustrating
such trade protectionism, see Lam Peng Er, Japan and the Spratlys
Dispute: Aspirations and Limitations, 36 Asian Survey 995 (1996). See
generally. Edson W. Spencer, Japan: Stimulus or Scapegoat? Foreign
Affairs (Fall
1983); Peter F Drucker, Japan’s Choices, Foreign Affairs
(Summer 1987).
[40]
See http://www.jcaa.or.jp/e/index-e.html
On the conduct of business in Japan, see e.g. Kitagawa Zentaro, Doing
Business in Japan - Contracts and Business Activities, Commercial
Instruments (New York: Matthew Bender & Company, 1989); Doi
Teruo, International Business Transactions: Contract and Dispute
Resolution (Tokyo: The Institute of Comparative Law, 1996); W. Gray, The
Use and Non-use of Contract Law in Japan in John Owen Haley ed.,
Law and Society in Contemporary Japan: American Perspectives, 243-262
(Dubuque, Iowa: Kendall Hunt,
1988).
[41] For a
classical commentary on the cultural and legal relationship between states and
commercial arbitration, see e.g. Martin Domke & Frances Kellor,
Western Hemisphere Systems of Commercial Arbitration, 6 Toronto L.J. 307
(1946).
[42] Having
so argued, I find somewhat overstated the comment: “The great strength of
the arbitration process lies in its independence
from any particular legal
culture,” used to advertise the book, Conflicting Legal Cultures in
Commercial Arbitration, Old Issues (Institute of Advanced Legal Studies,
Kluwer, Aspen Books), at http://www.aspenpublishers.com/Product.asp?catalog_name=Aspen&category_name=&product_id=9041112278&cookie%5Ftest=1
The great strength of arbitration is surely in its capacity to draw upon
different legal cultures in order to develop its own unique
and variable
strengths.
[43]
The localization and regionalization of trade and investment
is made all the easier by the capacity to “domesticate” or
“regionalize” international instruments, such as those that relate
to investment across national boundaries. See e.g, International center
for the settlement of investment disputes (ICSID) Rules governing the additional
facility for the administration
of proceedings by the secretariat of the
international center for the settlement of investment disputes (additional
facility rules),
at http://www.worldbank.org/icsid/basicdoc/partD.htm.
[44] See
further infra note
130.
[45] See
further infra note
139-141.
[46] On
the distinction between ad hoc and non-institutional arbitration, see
infra text accompanying note
133.
[47] Fast
track arbitration is ordinarily associated with expedited arbitration,
including: shorter time lines between the date an arbitration
claim is notified
and the date it is concluded; arbitration procedures tend to be truncated when
requirements for filing documents
are reduced; oral testimony is restricted or
eliminated; and arbitration awards are expedited. Discussion on “fast
track”
dispute resolution sometimes concentrates more on the spectrum of
alternatives to litigation, including mediation, than on “fast
track” commercial arbitration itself. See e.g. http://www.bcicac.com/bcicac_adr_articles_2.php
[48]
See further infra text accompanying note
114.
[49] See
further infra Section V. On domain name disputes, see
especially the site of the World Intellectual Property Association, infra
notes 139. See too Leon E. Trakman, From the Medieval Law
Merchant to E-Merchant Law”, supra note
26.
[50] See
further Carol Weisbrod, Emblems of Pluralism: Cultural Difference and the
State (Princeton: Princeton University Press, 2002). For a collection of
essays on the influence of legal culture on the development of
international
commercial arbitration, see Conflicting Legal Cultures in Commercial
Arbitration, Old Issues and New Trends (Institute of Advanced Legal Studies,
Kluwer, Aspen Books, 1999.) The essays include contributions by: Dr Christian
Borris (discussing
Civil Law versus Common Law cultures in arbitration);
Professor Andreas F. Lowenfeld (discussing the `mix' of cultures that gives
rise
to international commercial arbitration); Dr Serge Lazareff (discussing the
search to arrive at a Common procedure for international
commercial
arbitration); Sigvard Jarvin (comparing leading seats of international
arbitration); Jonathon Crook (discussing seats
of arbitration in the Far East);
Ambassador Malcolm R. Wilkey (exploring the practicalities of cross-cultural
arbitration); Jean
Reed Haynes (dealing with the confidentiality of
international arbitration); Dr Horacio A. Grigera Naón (discussing the
culture
in Latin American arbitration); and Dr Bernardo M. Cremades (evaluating
how interactive arbitration can overcome a clash among legal
cultures).
[51]
See Leon Sheleff, The Future of Tradition: Customary Law, Common Law
and Legal Pluralism (London, New York: Routledge,
2000).
[52] In some
respects, it may be argued that international commercial law is not truly
international at all, but localized in domestic
legal systems. After all, the
law of such arbitration is the lex situs; and the obligatory or binding
force of an arbitral award ordinarily resides in the place in which the award
happened to be rendered.
While the choice of a particular situs is
essentially consensual, the practical reality is that that choice is
ordinarily localized. It is on account of this localization of
international commercial arbitration, that one the most important
jurists on
international commercial arbitration, Jan Paulsson, has sought to reverse,
namely, to delocalize arbitration from the
place in which the award happened to
be rendered. See e.g., Jan Paulsson, Delocalisation of International
Commercial Arbitration: When and Why It Matters, 32 Intern.&Comp.L.Q.53
(1983). See generally, Siegfried H. Elsing and John M. Townsend,
Bridging the Common Law-Civil Law Divide, 18 (1) Arbitration
International 59
(2002).
[53] On the
Western Legal Tradition, see especially Harold J. Berman, Law and
Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass.:
Harvard University Press, 1983). For a reflection on the history of Western
legal theory, see J.M. Kelly, A Short History of Western Legal
Theory (New York: Oxford Un. Press, 1997).
[54] On the
evolution of the Civil and Common Law traditions, see supra notes
14-19.
[55] On the
“Americanization” of law, see e.g. supra note
8.
[56] See
Principles of European Contract Law, Parts 1 & 2 (The Hague: Kluwer Law
International, 1999) and Part III (The Hague: Kluwer
Law International, 2003);
European Law, see O. Lando & H. Beale (eds.) The Principles of
European Contract Law, Parts I and II (Dordrecht: Kluwer Law International,
2000),
also at http://www.jus.uio.no/lm/eu.contract.principles.part1.1995/index.html.
For an English translation of the German Civil Code, see http://www.gesetze-im-internet.de/englisch_bgb/german_Civil_code.pdf
(as amended on 19 April 2006); German Civil Code, transl. Simon L. Goren
(Buffalo, N.Y.: William S. Hein & Co., 1994). For an
English translation of
the French Civil Code, see http://lexinter.net/ENGLISH/Civil_code.htm
[57] On the
variety of state arbitration associations, see infra note
130.
[58] On
European arbitration, see supra note
13.
[59] See
generally, Leon E. Trakman, Dispute Resolution under the NAFTA: Manual
and Sourcebook (New York: Transnational Pub., New York, 1997); Leon E.
Trakman, Resolving Disputes Under Chapter 19 of the NAFTA in
Doing Business in Mexico (New York: Transnational Leg. Publ., 2004
release)
[60] On
the negotiations and agreements, see Guohua Yang, Bryan Mercurio & Li
Yongje, WTP Dispute Settlement Understanding: A Detailed Interpretation (The
Hague: Kluwer Law
International, 2005); http://www.worldtradelaw.net;
http://www.wto.org/english/docs_e/legal_e/legal_e.htm
See too World Trade Organization Dispute Settlement Decisions:
Bernan's Annotated Reporter, vols. 1& 2 (Lanham, MD: Bernan
Press, 1998).
[61]
In truth, the ICC is more significantly influenced by Civil than by Common Law.
See further on the ICC, see infra note 91 & 97 The author is
not aware of any international arbitration center that has adopted rules and
procedures that significantly
harmonize Civil and Common Law traditions.
[62] See
generally infra Section IV.
[63] On commercial
arbitration in the United Kingdom, see S.C. Boyd, and M.J.
Mustill, The Law and Practice of Commercial Arbitration in England
(Second Edition, London: Butterworths, 1989); Harold Crowther, Introduction
to Arbitration (London, UK: LLP Ltd., Legal Publishing Division, 1998); Mark
D. Cato, Arbitration Practice and Procedure: Interlocutory and Hearing
Problems (Colchester, Essex: Lloyd's of London Press, 1992); John
Collier and Vaughan Lowe, The Settlement of International Disputes:
Institutions and Procedures (Oxford: Oxford University Press, 2000); Peter
V. Eijsvoogel, Evidence in International Arbitration Proceedings,
(London: Kluwer,
1995).
[64]
Ibid.
[65]
On the evolution and sociology of legal cultures in Latin America and Latin
Europe, see Lawrence M. Friedman & Rogelio Perez Perdomo, eds.,
Legal Culture in the Age of Globalization: Latin America and Latin
Europe, (Stanford: Stanford Un. Press,
2003).
[66] For a
classical article on the Japanese Civil Code, its German Civil Code roots and
relationship to the French Civil Code, see Kazuo Hatoyama, The Civil
Code of Japan Compared with the French Civil Code, 11 Yale L. J.296
(1902).
[67] See
e.g. Zhang Qing, Contract Law in China, 16 Int’l. Q. 641
(2004); Paul T. Vout, Jing-Sheng Ye & Yi Yi Wu, China Contracts
Handbook (Hong Kong: Sweet and Maxwell Asia, 2000); Liming Wang,
Fundamental Principles of China's Contract Law, 13 Colum. J. Asian L. 1
(1999); Jianfu Chen, Chinese Law: Towards an Understanding of Chinese Law,
its Nature, and Development (Boston: Kluwer Law International, 1999);
Biang Ling, Contract Law in China (Hong Kong: Sweet and Maxwell Asia,
2001); Pittman B Potter, The Economic Contract Law of China : Legitimation
and Contract Autonomy in the PRC. (Seattle: University of Washington Press,
1992).
[68] For
illustrative arbitration courts that are associated with particular countries,
see e.g., Permanent Arbitration Court at the Croatian Chamber of
Commerce; Chicago International Dispute Resolution Association (CIDRA); International Arbitral Center of the Austrian Federal Economic
Chamber in Vienna; Belgian Center for Arbitration and Mediation; Chamber of National and International Arbitration of
Milan.
[69]
See Sandra Fullerton Joireman, Inherited Legal Systems and Effective
Rule of Law: Africa and the Colonial Legacy, 39 J. Modern African Studies
571 (2001).
[70] On
efforts to unify business law across Africa, see Fred R. Lawson,
Eversheds, Nanette Pilkington, David S. Sellers, Boris Martor,
Business Law in Africa: Ohada and the Harmonization
Process (London: Kogan Page, 2002).
[71] See e.g.
John Merryman, The Civil Law Tradition: Europe, Latin America, and East
Asia (Contemporary Legal Education Series,
1994).
[72] See
e.g. Motilal Chimanlal Setalvad, The Common Law In India
(London: Stevens, 1960); Mathias Reimann, The Oxford Handbook on
Comparative Law (Oxford: Oxford Un. Press, 2006). On arbitration in India,
see S.D. Singh and G.C. Mathur, Law of Arbitration.
(Lucknow, India: Eastern Book Company, 1994).
[73] J. Mark
Ramseyer, review of Brian E. McKnight, Law and the State in Traditional East
Asia: Six Studies on the Sources of East Asian Law, 42 Monumenta Nipponica,
502 (1987); Margaret Fordham, Comparative Legal Traditions: Introducing The
Common Law to Civil Lawyers in Asia, 1 Asia J. Comp. Law 1 (2006);
.
[74] Percy R.
Luney, Jr., Traditions and Foreign Influences: Systems of Law in China and
Japan, 52 Law & Contemp. Probs. 129 (1989); Kenzo Takayanag, Contact
of the Common Law with the Civil Law in Japan, 4 Am. J. Comp. L. 60
(1955).
[75] On
hybrid Common Law/Civil Law legal systems, see H. Patrick Glenn, On
Common Laws (Oxford, 2006); Nir Kedar, Civil Codification, Law and Culture
in a Mixed Legal System (January 15, 2007). Bar Ilan University, Public
Law and
Legal Theory Research Paper Series, forthcoming, at SSRN: http://ssrn.com/abstract=957592 On
the relationship between Roman Dutch Law in South Africa and international
commercial arbitration, see D. Butler and E. Finsen, Arbitration in
South Africa: Law and Practice (Cape Town, South Africa: Juta & Co.
Ltd., 1993).
[76] One would include, here,
the legal systems in most countries in modern day Africa, India, Pakistan, and
significant parts of Asia.
For discussion on the illustrative case of Africa,
see infra text accompanying notes 69-70.
[77] See infra
text accompanying note 86. Canadian Common lawyers, in turn, often find
themselves in the space somewhere between English and American
law traditions,
including in relation to commercial arbitration. See generally, J.B.
Casey and J. Mills, Arbitration Law of Canada: Practice and Procedure
(New York: Juris Int’l Publ., 2004); D.R. Haigh, A.K. Kunetzki & C.M.
Antony, International Commercial Arbitration and the Canadian Experience,
34 Alta. L.Rev.137
(1995).
[78] See
generally, The French Civil Code trans. John H. Crabb (Littleton, Colorado:
Fred B. Rothman, 1995); Rene David, French Law: Its Structure, Sources,
and
Methodology (Louisiana State Un. Press,
1972).
[79] For an English translation of
the German Civil Law of Obligations, see Simon L. Goren’s
translation of the BGB, supra note 56. For an excellent article on the
German Civil Code, see Werner F. Ebke, The German Law of Obligations:
The German Civil Code's Ambassador to the English-speaking Legal
Communities, 19 Oxford J. Leg. Stud. 547 (1999). See too Jurgen G.
Backhaus, The German Civil Code of 1896: An Economic Interpretation, 7 European J. L. &
Econ. 5 (1999).
[80] On the
nationalization of the Law Merchant, see Leon E. Trakman, The Law
Merchant, supra note 20, Ch. 2. On the regionalization of trade
generally, see infra note 43. Of interest, some
comparative lawyers believe that American law needs to “step out of the
shadows” of European law. See e.g., Mathias Reimann,
Stepping out of the European Shadow: Why Comparative Law in the United
States Must Develop Its Own Agenda, 40 Am. J. Comp.. L. 637 (1998).
[81] These local
legal traditions, in turn, impact to varying degrees upon the principles, rules
and procedures that are adopted by domestic
arbitration centers. See
further infra note 130.
[82] See
e.g., John Quigley, Socialist Law and the Civil Law Tradition, 37
Am. J. Comp. Law 781 (1989); Mary Ann Glendon, Common Law and Socialist
Law Traditions (Minn.: West Pub., 1985).
Mary Ann Glendon, Mirjan R.
Damaska & Peter E. Herzog, Common Law and Socialist Law Traditions,
43 J. Leg. Ed.
(1993).
[83] On the
role of China and CEITEC (China International and Economic and Trade Arbitration
Commission) in relation to international
commercial arbitration, see infra
text accompanying notes 100 and 104. In the absence of measurable
criteria, it is difficult to establish to what extent international
commercial
arbitration is perceived to have changed in responding to the changing world
order, except perhaps that it may not have
changed expeditiously or adequately
enough. However, in considering events over the last two decades – civil
wars, mass relocation
of peoples, the virtual collapse of some economic, social
and legal systems and the resurrection of others – it is hardly fair
to
judge the international arbitral community too harshly.
[84] See e.g.
Barbara Pasa & Gian Antonio Bennacchio, The Harmonization of Civil
and Commercial Law in Europe (Budapest: Central European Un. Press,
2006).
[85] See
e.g. J.J. White & R.S. Summers, Uniform Commercial Code (St.
Paul, Minn; West Publ., 2000); Richard Danzig, A
Comment on the Jurisprudence of the Uniform Commercial Code
27(3) Stan.
L.Rev.621 (1975); R.A. Hakes, S.L. Sepinuck & R.L. Meadows, The Uniform
Commercial Code Survey: Introduction, Business Lawyer
(2003).
[86] For an
excellent article on the differences between deductive Civil Law and inductive
Common Law reasoning, see Mirjan Damaska, A
Continental Lawyer in an American Law School: Trials and Tribulations of
Adjustment, 116 Pa. L. Rev. (1968). See too Leon E. Trakman, The
Need for Legal Training in International, Comparative and Foreign Law: Foreign
Lawyers at American Law Schools, 27 J.Leg.Ed.509 (1976).
[87] See e.g.
O.F. Robinson et al., An Introduction to European Legal History: Sources
and Institutions (Nashville, Tenn: Abingdon, 3rd ed. 2000).
[88] See text
infra Section
IV.
[89] See
supra note
1.
[90] For an
explicit reference by the London Court of International Arbitration that
international commercial arbitration is driven by
the needs of end users, the
business community, see infra text accompanying notes 97.
[91] This is a point of emphasis among
leading international arbitration centers. For example, using the banner
statement “The
choice is yours”, the ICC states: “The
International Chamber of Commerce offers a full spread of dispute resolution
services
so that you and your business partner can make the best choice.”
[emphasis added] at http://www.iccwbo.org/court/adr/id4592/index.html
Conceptually, too, it is well established that the first law of international
commercial arbitration is the law chosen by the parties.
See e.g., Thomas
E. Carbonneau, Lex Mercatoria and Arbitration (revised ed., Huntington,
N.Y.: Juris Publ., 1999); Thomas E. Carbonneau, Alternative Dispute
Resolution: Melting the Lances and Dismounting the Swords (Ithaca,
NY: University of Illinois Press, 1989); J.B. Casey, International and
Domestic Commercial Arbitration. Scarborough, Ontario: Carswell, 1993). For
useful sites on materials applicable to international commercial arbitration,
see http://faculty.smu.edu/pwinship/intlarb.htm; http://www.happlaw.de/
[92]
It is almost axiomatic today for domestic, regional and international
arbitration associations to refer to the cost and time efficiency
of arbitration
as a selling feature, including in studies sponsored by organizations like the
American Arbitration Association.
See e.g. http://www.adr.org/dw/ For
confirmation of a widely held belief that commercial arbitration is both time
and cost effective, including among judges and
commercial lawyers, study on
behalf of the Canadian Bar Association, see Leon E. Trakman, The
Efficient Resolution of Business Disputes, 30 Can.J.Bus.Law 321(1998) [being
a questionnaire and interview study into perceptions of federal court judges and
commercial lawyers
in Canada on the efficient resolution of business disputes,
conducted as a consultant to the Canadian Bar Association].
[93] One need
merely examine European conventions to see the influence of Europe on the
evolution of modern international commercial arbitration.
See e.g. European Convention on International
Commercial Arbitration, 484 U.N.T.S. 364 (April 21, 1961); Agreement relating to application of
the European Convention on International Commercial Arbitration, 523
U.N.T.S. 93, CETS No. 042 (Dec. 17, 1962); European
Convention Providing a Uniform Law on Arbitration, CETS No. 056, opened to
signature January 1, 1966; has not entered into force.
[94] On the ICC,
see infra note 97. On arbitration before the International Center for
Dispute Resolution of the AAA, see
http://www.adr.org/sp.asp?id=28819
On regional models, see e.g., The
Commercial Arbitration and Mediation Center for the Americas [CAMCA]
(directed at providing commercial parties involved in the NAFTA free trade area
with a forum for the resolution of their
private commercial disputes); European Court of
Arbitration (a private association with its situs in Strasbourg, but with
national and local divisions across; Europe); The
Inter-American Commercial Arbitration Commission [IACAC] (directed at
settling international commercial disputes through conciliation and
arbitration).
[95] On the Swiss
Arbitration Association, see http://www.arbitration-ch.org/; On the
Australian Centre for International Commercial Arbitration, see http://www.acica.org.au/ On the
Australian law in relation to commercial arbitration, in particular in New South
Wales, see Justice Keith Mason, Changing Attitudes in the Common Law's
Response to International Commercial Arbitration (Keynote Address at
International
Conference on International Commercial Arbitration, 9 March 1999),
at http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_mason_090399
[96] See
further infra text accompanying note 130. See too, Leon E.
Trakman, Appropriate Conflict Managemen , 2001 Wisconsin L. Rev. 919.
[97] On the ICC
court, see http://www.iccwbo.org/court/ On its
home page, the ICC Court is described as “a truly international
arbitration institution with an outstanding record
for resolving cross-border
business disputes.” The London Court also “presides over” the
London Court of International
Arbitration. However, its jurisdiction is limited
compared to the jurisdiction of the ICC Court. For example, the LCIA provides:
“[t]he LCIA Court is the final authority for the proper application of the
LCIA Rules.” It adds: “Its principal
functions are the appointment
of tribunals, the determination of challenges to arbitrators, and the control of
costs.” See http://www.lcia-arbitration.com/
[98] On ICC
arbitration, see Jan Paulsson, Jan, William W. Park, and W.
Laurence Craig International Chamber of Commerce Arbitration (3rd ed.,
Oxford, U.K., Oxford Un. Press,
2001).
[99] On U.S.
laws relating to arbitration, as well as arbitration laws procedures, see
Laura Ferris Brown ed., The International Arbitration Kit: A
Compilation of Basic and Frequently Requested Documents (Rev. 4th ed., New
York: American Arbitration Association,
1993).
[100] The
rules governing CIETAC arbitration have been continuously revised, in 1989,
1994, 1995, 1998, 2000 and 2004 in order to comply
with international standards.
The most recent version of the CIETAC Arbitrational Rules became effective on
May 1, 2005. On CEITAC,
see http://ceitac.org; http://www.cietac.org.cn/index_english.asp. See too
Priscilla Leung Mei-fun and Wang Sheng-chang, Selected Works of
China International Economic and Trade Arbitration Commission Awards,
volume 2 (Sweet & Maxwell Asia,
1998); C Charles D. Paglee, China Consolidates Arbitration
Law, Amends CIETAC Rules and Joins I.C.C., Institute for Trans-national
Arbitration's News and Notes (School of Law, Southern Methodist University,
January
1995).
[101]
While international arbitrators subscribe to different degrees to this view, it
is difficult to establish the extent to which arbitration
proceedings in either
center are conducted orally or in writing. Neither center, understandable,
subscribes expressly to an oral
or written tradition in part because both appeal
to an international legal community that includes Civil and Common Law
traditions,
because the admission of oral and written testimony under the rules
of both centers is governed by the presiding arbitrator(s) who
may rule
differently in different cases, and because proceedings are influenced by the
practice of counsel, including the documents
they file and the manner in which
they present their cases. Moreover, given the confidentiality of arbitration
proceedings, establishing
the exact mix of written and oral evidence before
particular arbitrators is difficult to establish. See further text
immediately below. See too Leon E. Trakman, Confidentiality in
International Commercial Arbitration 18 Arbitrational International 1(2003).
[102] See
Alternative Dispute Resolution, Introduction at http://www.lcia-arbitration.com/
[103] For a
report of the litigiousness of US lawyers in arbitration, see e.g. Richard D.
Wilkins, Arbitrate Or Out, CNY Business Journal
(Feb.5, 1996). On a challenge
to the so-called litigation “crisis” in the United States, see Marc
Galanter, The Day After the Litigation Explosion, 46 Md. L. Rev. 3
(1986); Marc Galanter, Reading the Landscape of Disputes: What We Know and
Don't Know (And Think We Know) about Our Allegedly Contentious and Litigious
Society, 31UCLA Law Review 4 (1983).
However, an adjudicative process
should be distinguished from an adversarial one: Disputes can be adjudicated
with different kinds
and degrees of adversarialism. See e.g. Jonnette
Watson Hamilton, Adjudicative Processes, in Julie Macfarlane, ed.,
Dispute Resolution Readings and Case Studies 523-582 (Toronto: Emond
Montgomery, 1999).
[104] For
example, CEITAC has confirmed, party autonomy in and confidentiality of
arbitration proceedings, as well as the independence
of arbitrators from the
Chinese State. CEITAC has also revised its arbitration rules to redress
conflicts of interest among arbitrators.
It has also subscribed to the New York
Convention governing the recognition and enforcement of foreign arbitral awards.
See generally
http://www.cietac.org.cn/english/introduction/intro_1.htm.
[105] Consider,
for example, the influence over international commercial arbitration of, among
others, long-time Chairman of the International
Chamber of Commerce, Dr. Robert
Briner, a position now held by Marcus Wallenberg. See http://www.iccwbo.org/iccfbcf/index.html
[106] See
e.g. Civ. No. 94-2339 (July 31, 1996) ("Chromalloy"), reprinted in 11
Mealey's Int'l Arb. Rep. (Aug. 1996) at C-54 (August 1996). See too
Jan Paulsson, Delocalization of International Commercial Arbitration :
Why and When it Matters, 32 Int’l. & Comp. L.Q. 53, 54-61
(1983).
[107]
See supra note 27 and Section
VI.
[108]
Hereinafter “New York Convention”. See United
Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards
of 1958 (New York Convention) 330 U.N.T.S. 3, 21 U.S.T. 2517, TIAS 6997
(June 10, 1958). See too
UNCITRAL - Status of Conventions and Model Laws for a list of signatories to
the New York
Convention.
[109]
See further Section VII.
[110] A
partial list of arbitration rules and procedures include: Rules and Procedures
of the International Center for Dispute Resolution
of the American Arbitration
Association [AAA] at
http://www.adr.org/index2.1.jsp?JSPssid=15732&JSPsrc=upload\LIVESITE\focusArea\international\AAA175current.htm;
Mediation and Arbitration Rules and Procedures of the Commercial Arbitration
and Mediation Center for the Americas [CAMCA] at http://www.adr.org/index2.1.jsp?JSPssid=15732&JSPsrc=upload\LIVESITE\focusArea\international\camca_rules.html
; Rules of Procedure of the Inter American Arbitration Commission [IACAC] at http://www.sice.oas.org/DISPUTE/comarb/iacac/rop_e.asp;
Supplementary Rules Governing the Presentation and Reception of Evidence in
International Commercial Arbitration of the International
Bar Association [IBA]
at http://www.asser.nl/ica/iba.htm
From the International Bar Association [IBA]; IBA Rules on Taking
Evidence in International Commercial Arbitration, at http://www.ibanet.org/pdf/rules-of-evid-2.pdf;
Rules and Procedures of the International Court of Arbitration [ICC] at
http://www.iccwbo.org/court/english/arbitration/rules.asp;
Pre arbitral Referee Rules of the ICC at http://www.iccwbo.org/court/english/pre_arbitral/all_topics.asp
; Rules of the
ICC as the Appointing Authority in UNCITRAL or Other Ad Hoc
Arbitration Proceedings at
http://www.iccwbo.org/court/english/appointing_authority/all_topics.asp;
ICSID Rules of Procedure for Conciliation and Arbitration Proceedings at
http://www.worldbank.org/icsid/basicdoc/basicdoc.htm;
ICSID Additional Facility Rules at (http://www.worldbank.org/icsid/facility/facility.htm);
Rules of the London Court of International Arbitration [LCIA] at http://www.lcia-arbitration.com/lcia/arb/;
Tribunal Rules of Procedure (Iran-United States Claims Tribunal) at http://www.iusct.org/tribunal-rules.pdf
; Rules of Procedure of the Permanent Court of Arbitration at http://www.pca-cpa.org/ENGLISH/BD/;
UNCITRAL Rules of Arbitration http://www.uncitral.org/english/texts/arbitration/arb-rules.htm
;
UNCITRAL Procedures for Cases under the UNCITRAL Rules of Arbitration; http://www.adr.org/index2.1.jsp?JSPssid=15732&JSPsrc=upload\LIVESITE\focusArea\international\AAA112-0900.htm#Article_1
For additional commentary on these varied rules, see http://www.llrx.com/features/arbitration2.htm#MetaResources
[111] This
observation is accentuated by the fact that every arbitration association, in
pursuit of arbitration business, promotes its
own arbitration clauses and
procedures. On the plethora of domestic arbitration centers that have sprung up
over the last two decades,
see infra note 130. This is not to
suggest that each domestic arbitration center has its own distinct set of rules
and procedures, except to
note that centers vary in both the services they
provide and the manner in which they deliver them. For a variety of arbitration
clauses from which parties to international commercial arbitration can choose,
see http://madaan.com/intarb.html
[112] Even in comparing different rules
and procedures governing international commercial arbitration, patterns emerge
among them, making
them both more coherent and in some respects, mutually
consistent. For a chart on such different rules, see Hans Smit and
Vratislav Pechota, ed. (Huntington, NY: Juris Publishing, 1998). See too
Tibor Várady, John J. Barceló, and Arthur T. von Mehren.
International Commercial Arbitration: A Transnational Perspective (Third
Edition, St. Paul, MN: Thompson/West Group, 2006). For a useful list of rules
and procedures governing international commercial
arbitration provided by
West/Thompson Publishing, see http://directory.westlaw.com/default.asp?GUID=WDIR00000000000000000000091290517&RS=WDIR1.0&VR=1.0
[113]
For a list of arbitration rules and procedures, see infra note 130.
See too, Country Listing, i. National Law, http://www.llrx.com/features/arbitration2.htm#MetaResources;
West Law’s International Commercial Arbitration Library,
Institutions, at http://www.thomson.com.au/westlaw/WestlawInternationalCommercial_ArbitrationLibrary.pdf
[114] Even a
single arbitration association may provide a variety of arbitration clauses for
adoption at the discretion of the parties.
The ICC, for example, states:
“Four alternative ICC ADR clauses are suggested. They are not model
clauses, but suggestions,
which parties may adapt to their needs, if required.
Their enforceability under the law applicable to the contract should be
evaluated,”
cited at http://www.iccwbo.org/court/adr/id5346/index.html
Further provision is made for “Optional ADR”, namely, "The parties
may at any time, without prejudice to any other proceedings,
seek to settle any
dispute arising out of or in connection with the present contract in accordance
with the ICC ADR Rules." supra in
note.
[115] This is a controversial
statement, in part because parties to international commercial arbitration are
not invariably “equal”
in bargaining power and because it is often
difficult to identify whether or not an international arbitration award has been
enforced
in fact. Proceedings are confidential; parties often avoid discussing
failed relationships; and renegotiation by parties following
an arbitration
award is quite common. Nevertheless, incomplete reports suggest that, despite
the somewhat spotty evidence of the
enforcement of awards, rates of enforcement
remain impressive. On the published decisions of selected arbitration awards,
see e.g. M.A. ONorwell ed., ASA Bulletin (The Hague: Kluwer Law
International, updated services); CLOUT cases at http://www.uncitral.org/english/clout/index.htm
and http://www.interarb.com/vl/clout/.
For collections of arbitration awards, see: Sigvard Jarvin & Yves Derains,
ed., Collection of ICC Arbitral Awards (ICC Publ., Paris, New York:
Kluwer Law International, 1990 and 1994:); Jean-Jacques Arnaldez, Yves Derains
and Dominique Hascher
eds., Collection of ICC Arbitral Awards, Vol. III
(1991-1995) Vol. IV (1996-2000) (The Hague; Boston: Kluwer, 1997-); Matthieu
Reeb, ed., Digest of CAS Awards, Vol. I (1986-1998) (Berne:
Stæmpfli, 1998); Matthieu Reeb, ed., Digest of CAS Awards, Vol II
(1998-2000) (The Hague; New York: Kluwer Law International, 2002); Lauterpacht
& Greenwood, eds., ICSID Cases, http://www.worldbank.org/icsid/cases/cases.htm;
International Law Reports, (Cambridge, England: Grotius Publications, 1950-);
Iran-U.S.
Claims Tribunal Awards and Decisions http://www.iusct.org/iusctr-cross-reference.pdf
; http://www.iusct.org/lists-eng.html;
http://www.iusct.org/awards-eng.html;
Journal de Droit International (Clunet)
Paris, Librarie
générale de droit et de jurisprudence, v. 1 (1874-); Lloyd's
Arbitration Reports
(London: Lloyd's of London Press Ltd., 1988-);
Mealey’s International Arbitration Report (LexisNexis, 1986-); Binational
Panel
Decisions and Panel Reports under Chapters 11, 19 and 20 of the NAFTA at
http://www.sice.oas.org/DISPUTE/nafdispe.asp;
Reports of International Arbitral Awards Vol 1 (United Nations, 1948
-);Transnational Law Database (TLDB) at
http://www.tldb.de/; UNILEX on arbitration awards
and decisions related to the CISG and UNIDROIT at http://www.unilex.info/; International
Commercial Arbitration Decisions and Awards by Westlaw at http://directory.westlaw.com/default.asp?GUID=WDIR00000000000000000000091290506&RS=WDIR1.0&VR=1.0;
Hans Smit and Vratislav Pechota, eds., The World Arbitration Reporter,.
Vol. 5 (Huntington, N.Y.: Juris Publishing); World Trade and Arbitration
Materials. [W.T.A.M.]
Vol. 6 (Geneva, Switzerland: Werner Pub. Co., 1994-.);
WTO Rulings at http://www.wto.org/english/tratop_e/dispu_e/distabase_wto_members1_e.htm;
http://www.sice.oas.org/DISPUTE/gatdispe.asp;
Albert Jan van den Berg, ed., Yearbook, Commercial Arbitration, Vol. 1
(Deventer, Netherlands: Kluwer Law International, Vol. 1
(1976).
[116] Of note,
parties can also identify and assess the credentials of prospective arbitrators
online. See e.g. The Dispute Resolution Directory of Martindale-Hubbell
at http://www.martindale.com/xp/Martindale/Dispute_Resolution/Search_Dispute_Resolution_Directory/qual_search.xml;
ICC Expertise Dispute Resolution Services at http://www.iccwbo.org/drs/english/expertise/all_topics.asp
See also Smit’s Roster of International Arbitrators (Guide to
International Arbitrators, 3rd ed), supra note
12
[117] However,
sustained efforts have been made to develop international principles of law that
provide remedies against the use of unfair
contract terms, including in relation
to arbitration. See e.g. O. Lando, Unfair Contract
Clauses and a European Uniform Commercial Code, in M. Cappelletti, ed,, New
Perspectives for a Common Law of Europe (European University Institute,
1978) at p. 267. See too Michael Joachim Bonnell, The UNIDROIT
Principles of International Commercial Contracts and the Principles of European
Contract Law: Similar Rules for the Same
Purposes? 26 Uniform Law Review 229
(1996). On “adhesive” arbitration clauses in international software
licenses, see e.g. John P. Tomaszewski, The Enforceability of
Adhesive Arbitration Clauses in International Software Licenses, 3(1) J.
Tech. L. & Policy (1997), at http://grove.ufl.edu/~techlaw/vol3/issue1/tomaszewski.html
[118] United Nations
Convention on Contracts for the International Sale of Goods (CISG) 1489 UNTS
3, concluded April 10, 1980, entered into force on January 1, 1988. On the
international harmonization of private law generally, see the
International Institute for the Unification of Private Law [UNIDROIT] at
http://www.unidroit.org/ For
a comprehensive database on the CISG, see
http://cisgw3.law.pace.edu/cisg/guide.html
[119]
See Isaak I. Dore, Arbitration and Conciliation Under the UNCITRAL Rules: A
Textual Analysis, (Boston: Marinus Nijhoff, 1993); Jacomijn J. van Hof,
Commentary on the UNCITRAL Arbitration Rules: The Application by the
Iran-U.S. Claims Tribunal (Accord, Mass: Kluwer Law and Taxation, 1992).
Aron Broches, Commentary on the UNCITRAL Model Law of International
Commercial Arbitration (Deventer, The Netherlands: Kluwer Law and Taxation,
1990); Howard M. Holtzmann and Joseph E. Neuhaus, A Guide to the UNCITRAL
Model Law On Commercial Arbitration: Legislative History and Commentary
(London: Kluwer, 1989). Attempts at harmonizing international arbitration
practice, however, well precede the UNCITRAL Model Law.
See e.g., the almost
century old Geneva
Protocol on Arbitration Clauses[1924] LNTSer 136; , 27 LNTS 157, signed September 24, 1923 and
entered into force July 28, 1924. In some respects, the Protocol normalized the
use of international
commercial arbitration by regularizing the use of
arbitration clauses in contracts. On related efforts to harmonize international
commercial practice more generally particularly in relation to the UNIDROIT,
see Bonnell, supra note
117.
[120] See Yang, Mercurio &
Yongjie, supra note 60; Ernst-Ulrich Petersmann, The GATT/WTO
Dispute Settlement System: International Law, International Organizations and
Dispute Settlement (Leiden, Holland: Martinus Nijhoff Publ., 1997); Bernard
M. Hoekman & Michael M. Kostecki, The Political Economy of the World
Trading System: From GATT to WTO (Oxford; Boston: Blackwell Pub., 2001).
See generally, on the World Trade Organization, http://www.wto.org/; http://www.wto.org/english/docs_e/legal_e/legal_e.htm
[121] CP Bown,
Developing Countries in GATT/WTP Trade Disputes (Oxford; Boston:
Blackwell Pub., 2004); A Helmedach &, B Zangl, Dispute
Settlement under GATT and WTO: An Empirical Enquiry into a Regime Change, at
http://www.sgir.org/conference2004/papers/Helmedach%20Zangl%20-%20Dispute%20Settlement%20under%20GATT%20and%20WTO.pdf;
A. Lynne Puckett & William L. Reynolds, Rules, Sanctions and Enforcement
under Section 301: At Odds with the WTO? 90 Am. J. Int’l. Law 675
(1996); K Leitner, WTO Dispute
Settlement 1995-2003: A Statistical Analysis 7 J. Int’l. Econ.
Law 169 (2004); David Palmeter and Petros C. Mavroidis Dispute Settlement in
the World Trade Organization: Practice and Procedure (The Hague, London,
Boston: Kluwer Law International,
1999).
[122] See Peter E. Larson &
Dorothy Riddle, Business Guide to the General Agreement on Trade in Services
(GATS) (Commonwealth Secretariat,
2000); Pierre Sauvé, Gats 2000: New
Directions in Service Trade Liberalization (Brookings Institution Press,
2000)
[123] For a strong proponent
of the development of multilateral trade, see Jagdish Bhagwati, In
Defense of Globalization (Oxford: Oxford University Press, 2004). See
too The Berkeley Center for Law, Business and the Economy, The WTO and
International Trade Law After Doha: Where do we go from here? (Reisenfeld
Seminar 2007) at http://www.law.berkeley.edu/journals/bjil/adhome.htm; Gregory
Shaffer, The Challenges or WTO Law: Strategies for Developing Country
Adaptation, http://72.14.253.104/search?q=cache:nyOcTH7vGsoJ:wage.wisc.edu/uploads/WTO%2520Conference/2shaffer%2520wto%2520legal%2520challenges-strategies%2520article.pdf+WTO+legal+pressure&hl=en&ct=clnk&cd=7
[124] Given the
private and confidential nature of arbitration proceedings, it is difficult to
assess the volume of increased arbitration
traffic arising from bilateral and
investment treaties. However, arbitration associations do release
figures about the number of cases they have heard in particular periods of time,
including the substance of such disputes.
The Singapore International
Arbitration Centre (SIAC), for example, provides details of the number of cases
heard before different
international and regional arbitration centers from 2000
to 2005 based on self-reporting by each arbitration center. According to
the
2005 figures, the number of cases heard, in descending order were: AAA-ICDR (580
cases), ICC (512 cases); CEITAC (421 cases);
LCIA (118 cases); SCC (53 cases);
KCAB (53 cases); SIAC (45 cases); JCAA (9 cases); KLRCA (7cases); BCIAC (2
cases); PDRC (0 cases);
HCIAC (n/a). See further http://www.siac.org.sg/ What makes this
information less than ideal is the fact that it relies on self-reporting, that
there is insufficient information
available on the quantum in dispute in each
case, the kind and size of awards, and the type of dispute in issue. What is
also not
always clear is whether each Center includes cases in which it provides
all arbitration services, or only some of them, or whether the
Center simply serves as a location for the parties to hold their own arbitration
proceedings. SIAC, for example,
excludes the HCIAC from its list, supra
in note, on grounds that the HCIAC does not differentiate between
arbitration it conducts and arbitration in which it serves only
as the dispute
solving locale.
[125] See
Leon E. Trakman, Arbitrating Under Chapter 11 of the NAFTA: A Mexican
Investor v the U.S. in Leon E. Trakman, Nick Ranieri and Marlon
Lopez, eds., Doing Business in Mexico (Transnational Leg. Publ., NY, 2002
release); Leon E. Trakman, Arbitrating Investment Disputes under Chapter 11
of the NAFTA, 17 J. Intl. Arb. 285
(2001).
[126]
The full reference is as follows: “1. Each Party shall, to the maximum
extent possible, encourage and facilitate the use of
arbitration and other means
of alternative dispute resolution for the settlement of international commercial
disputes between private
parties in the free trade area.” See Leon
E. Trakman, Dispute Settlement Under the NAFTA: Manual and Sourcebook p.
335 (New York: Transnational Leg. Publ,
1997).
[127]
See Convention
on the Execution of Foreign Arbitral Awards, at http://www.jurisint.org/pub/01/en/doc/151_1.htm[1929] LNTSer 193; ,
92 LNTS 301; signed September 26, 1927, entered into force on July 25, 1929.
[128] On a limited study that so
suggests, see supra note 34. For a now classical collection of lectures
that deal with the interface between public and international commercial
arbitration,
see InterArbitration.net, at http://www.interarbitration.net/;
S.M.Schwebel, International Arbitration: Three Salient Problems
(Cambridge, UK: Grotius Publications,
1987).
[129]
There are various websites that provide prospective parties with copious
“how to” arbitrate information, from choosing
law firms to
identifying the form of arbitration or other alternative to litigation to adopt.
See e.g. http://www.hg.org/adr.html; http://interarb.com/vl/; http://www2.lib.uchicago.edu/~llou/intlarb.html
On how to make a choice of forum and choice of law decision in arbitration,
see Gary B. Born, International Arbitration and Forum Selection
Agreements - Planning, Drafting and Enforcing. The Hague; Boston:
Kluwer Law International, 1999); Peter E. Nygh, Choice of Forum and
Law in International Commercial Arbitration (Kluwer Law International,
1997); William W. Park, International Forum Selection
(Kluwer Law International,
1995).
[130] For
an extensive but still incomplete list of national and/regional institutions
that provide arbitration services, see Arbitration Court of the Bulgarian
Chamber of Commerce and Industry; Arbitration Institute of the Stockholm Chamber of Commerce
(AISCC); Centro de Arbitraje de México ; Belgian Centre for International
Arbitration and Mediation Australian International
Commercial Arbitration Centre
Cairo Regional Centre for International Commercial Arbitration; British Columbia
International Commercial
Arbitration Centre; Chile, Santiago
Arbitration and Mediation Center; China International Economic
and Trade Arbitration Commission; Croatia, Permanent Arbitration
Court at the Croatian Chamber of Commerce; Czech Republic, Arbitration Court
Attached to the Economic Chamber of the Czech Republic; Egypt. Cairo Regional Centre
for International Commercial Arbitration; Estonian Chamber of Commerce and
Industry; France,
Arbitration Chamber of Paris; France;
Centre de Médiation et d'Arbitrage de Paris; German Institution of Arbitration - Deutsche
Institution für Schiedsgerichtsbarkeit; Hong Kong International Arbitration
Centre; India, Indian Council of
Arbitration (ICA); Indonesian National
Board of Arbitration; Iran-United States Claims
Tribunal; Italy,
Chamber of National and International Arbitration of Milan; Japan Commercial Arbitration
Association; Korean Commercial Arbitration
Board; Malaysia, Kuala Lumpur Regional
Centre for Arbitration; Mexico,
Centro de Arbitraje de México; Netherlands Arbitration Institute; Poland, Court of Arbitration at the
Polish Chamber of Commerce; Portugal. Centre for
Commercial Arbitration, Lisbon Trade Association, Portuguese Chamber of
Commerce; Romania, Court of
International Commercial Arbitration Attached to the Chamber of Commerce and
Industry of Romania and Bucharest; Russia, St. Petersburg
International Commercial International Arbitration Court; Scottish Council for International Arbitration ; Singapore
International Arbitration Centre; Southern Africa, Arbitration Foundation of
Southern Africa; Sweden, Arbitration
Institute of the Stockholm Chamber of Commerce; Switzerland, Swiss Chambers’
Arbitration; Tunisia, Center for
Conciliation and Arbitration of Tunis; United Kingdom, London Court of
International Arbitration; United
Kingdom, Chartered Institute of Arbitrators; United States, Chicago International Dispute
Resolution Association; United States,
International Center for Dispute
Resolution.
[131]
Richard Garnett, Henry Gabriel, Jeff Waincymer and Judd Epstein, Practical
Guide to International Commercial Arbitration (Oxford: Oxford Un. Press,
2001); Paul Friedland, Arbitration Clauses for International Contracts
(Huntington, NY: Juris Publishing, 2000); Jan Paulsson et al, eds., The
Freshfields Guide to Arbitration and ADR (2nd rev.ed., The Hague; Boston:
Kluwer Law International, 1999); Lovells International Arbitration Guide
at http://www2.lovells.com/Arbitration/SilverStream/Pages/pgHome.html
; Permanent Court of Arbitration Model Clauses (The Hague), http://www.pca-cpa.org/ENGLISH/BD/#Model;
WESTLAW’s International Commercial Arbitration Model Clauses at
http://directory.westlaw.com/default.asp?GUID=WDIR00000000000000000000091290514&RS=WDIR1.0&VR=1.0;
J.G. Merrills, International Dispute Settlement (Third Edition,
Cambridge: Cambridge Un. Press, 1998); Allan J.Stitt, ed., Alternative
Dispute Resolution Practice Manual (Looseleaf Service, North York, Ontario:
CCH Canadian Limited, 1996); Marcus Jacobs, Commercial Arbitration: Law and
Practice, Four Volumes (Sydney, Australia: The Law Book Company,
1990-1992).
[132]
Perhaps most pronounced of these growth areas in international commercial
arbitration relate to maritime law historically, sports
law especially since the
2000 Sydney Olympic Games and intellectual property law. On maritime law
arbitration, see Society of Maritime Arbitrators, Inc. (SMA) at http://www.smany.org/ On sports arbitration,
see Court of Arbitration for Sport (CAS) at http://www.tas-cas.org/default.htm
On intellectual property, see esp., The World Intellectual Property
Organization Arbitration and Mediation Center
http://www.arbiter.wipo.int/center/index.html
[133]
Non-institutional arbitration is sometimes inaccurately referred to as “ad
hoc” arbitration. Non-institutional arbitration
takes place independently
of an arbitration association like the ICC, AAA or London Court. Ad hoc
arbitration involves the adoption of arbitration at the time of a dispute,
rather than in consequence of an arbitration clause in
a pre-existing contract.
Non-institutional and ad hoc arbitration often coincide in fact.
However, they diverge, for example, when the parties submit their ad hoc
dispute for resolution in accordance with the rules and procedures of a
particular arbitration association. See text immediate
below.
[134] On
the relationship between legal culture and non-institutional arbitration, see
supra text accompanying note 42.
[135]
The BCIAC states directly on its web homepage, “Established in 1986, the
BRITISH COLUMBIA INTERNATIONAL COMMERCIAL ARBITRATION
CENTRE (BCICAC) is an
organization committed to offering businesses alternatives to litigation.
Alternative dispute resolution includes
mediation and arbitration which are
effective and cost-efficient methods for achieving resolution of
commercial disputes. Unlike litigation, these processes are also
confidential.... The Centre
is available to provide information and assist in
the smooth conduct of the arbitration or mediation. As an administrator, the
Centre
provides Rules of Procedure, establishes timelines, and appoints
independent and qualified mediators and expert arbitrators.”
[bold face in
the original.] On careful examination, it is apparent that, while the Centre
has its own arbitration rules and procedures,
it also serves as a locus in
which parties can choose to arbitrate their disputes according to their own
arbitral rules or for that
matter, the rules of any other arbitration center,
See http://www.bcicac.com/
[136]
International arbitration centers, like the Hong Kong International Arbitration
Centre [HKIAC] sometimes fail to distinguish between
cases they administer and
arbitrations that use their facilities. See http://www.hkiac.org/HKIAC/HKIAC_English/main.html
But see Neil Kaplan, et al., Hong Kong and China Arbitration: Cases
and Materials (Butterworths, 1994). Other arbitration centers provide
alternative services to arbitration conducted by the center, with limited
discussion other than by stating that parties interested in these services can
contact the secretariat or other administrative body
of the center. The London
Court of International Arbitration, for example, so provides in regard to
“Expert Determination,
Adjudication and Other Services”, at http://www.lcia-arbitration.com/
[137]
Interestingly, the Singapore International Arbitration Centre provides two lists
of cases it has administered between 2000 and 2005,
the first list consists of
cases administered under its own SIAC rules (52 cases in 2005); the second list
consists of cases administered
under “other rules” (22 cases in
2005). One can reasonably assume that these other rules include ad hoc
arbitration in which the parties use SIAC facilities but adopt to varying
degrees, their own or some other association’s rules
and procedures.
See http://www.siac.org.sg/ See
further supra note 119 and infra note
146.
[138] For
conferences and papers on the development of an Internet culture, see http://portal.acm.org/citation.cfm?id=722390
[139]
See http://www.wipo.int/amc/en/domains/.
See too Leon E. Trakman, From the Medieval Law Merchant to E-Merchant Law,
supra note
26.
[140] The
American Arbitration Association, including its International Center for Dispute
Resolution provides for online filling. See http://.adr.org/sp.asp?id=21890
Similarly, the Hong Kong International Arbitration Centre (HCIAC) does so
as well in domain name, e-commerce and Internet Keyword
disputes. See http://.hkiac.org/HKIAC/HKIAC_English/main.html
In contrast, the ICC does not appear to provide online services, although
it does provide significant information about arbitration
on its home site.
See e.g. http://www.iccwbo.org/court/adr/id4424/index.html
[141] A
formidable barrier to developing an “Internet culture” in
arbitration relates to a combination of concerns about maintaining
the
confidentiality of proceedings and the comfort level of arbitrators and parties
with Internet services. It is apparent that
gateways and passwords can do a
great deal to offset the former criticisms, particularly with the massive advent
of increasingly
secure Internet banking. The latter impediment is partially
generational and will recede as younger arbitrators and parties demonstrate
their comfort with the Internet, including in relation to dispute resolution.
One can also speculate over the prospect of additional
Internet features being
added for arbitration, including video-Internet-conferencing, podcasting, and
other recent and prospective
developments. For conference and workshop debates
on these and other issues relating to the development of an Internet culture,
see http://portal.acm.org/citation.cfm?id=722390
For an interesting perspective on the future of online dispute resolution in
relation to international commercial arbitration, see Jasna Arsic,
International Commercial Arbitration on the Internet: Has the Future Come Too
Early?, 14 J. Int’l. Arb. 209
(1997).
[142] Not
only is China very much part of the global trading community, it is unashamedly
committed to engaging in global business. China’s
CIETAC is also one of
the most active international commercial arbitration centers in the world.
See e.g. http://www.cietac.org.cn/english/introduction/intro_1.htm
At the same time, CIETAC must continually overcome criticism for being
parochial, inter alia, in regard to the appointment of CIETAC
arbitrators, in the conduct of arbitration proceedings under CEITAC’s
rules and in the
enforcement of CEITAC awards. But see e.g. Philip J.
McConnaughay and Thomas B. Ginsburg, International Commercial Arbitration in
Asia, 2nd Ed. (Juris Publishing, 2006). Chapters
III and IV. On resolving business disputes in China, see e.g.
Resolving Business Disputes in China, 1st
ed. (CCH Asia & Kluwer International, 2005); http://www.jurisconferences.com/conf_include/pdfs/2007-china-business.pdf;
http://www.jurisconferences.com/arbitration.php?id=2&p=2;
http://www.freshfields.com/practice/disputeresolution/publications/pdfs/8287.pdf
[143] These arbitration “think
tanks” are not unqualifiedly objective. In addition to providing
arbitration education, some provide traditional arbitration services, including
offering lists of arbitrators and serving as forums for dispute resolution.
Nevertheless, the primary business of such organizations
is to build sponsored
relationships with a domestic, regional, or international business community
more than to serve as arbitration
associations. See e.g. The Center for
Public Resources (CPR) [ now the Center for Prevention and Resolution of
Conflicts], setting out arbitration clauses,
rules and procedures and lists of
national and international neutral arbitrators, at http://www.cpradr.org/ See too on the
Association for International Arbitration (AIA), http://www.arbitration-adr.org/home.htm;
The Institute for Transnational Arbitration (ITA), a division the Center for
American and Transnational Law, at http://www.cailaw.org/ita/ The
“how to” arbitrate also includes advising new arbitrators on how to
arbitrate disputes. See e.g. Alan Miles Ruben, ed., Elkouri &
Elkouri: How Arbitration Works (Sixth Ed., Washington, DC: The Bureau of
National Affairs, Inc., 2003); Mark Huleatt, James Gould & Nicholas Gould
International Commercial Arbitration-A Handbook (Second edition, London,
UK: LLP Ltd., Legal Publishing Division, 1999); Allen H. Goodman, Basic
Skills for the New Arbitrator (Rockville, MD: Solomon Publications,
1993).
[144] On
the cost and time associated with arbitration, see supra note 92.
[145] For
example, the International Center for Dispute Resolution of the American
Arbitration Association stresses the convenience of
its streamlined rules and
procedures, including online services and filing. http://www.adr.org/sp.asp?id=21890
[146] The
Singapore International Arbitration Centre [SIAC] has established itself as a
cost-effective regional center with the significant
advantage of being a
commercial hub. The last promotional bullet on its home page states,
unashamedly, that SIAC provides: “Lower
cost than in almost any other
major centre of arbitration.” See “What Singapore has to
offer” at http://www.siac.org.sg/
Over time, this refrain is likely to become increasingly commonplace as
arbitration associations compete for local, regional, and
also international
business.
[147] See Lawrence M
Friedman, Are We a Litigious People? In Legal Culture and the
Legal Profession supra note 13. See generally, Gary B. Born,
International Commercial Arbitration in the United States: Commentary &
Materials, (2d ed. Ardsley, NY: Transnational Publishers; The Hague:
Kluwer Law International, 2001); Kathryn Helne Nickerson, International
Arbitration (1998), at
http://www.osec.doc.gov/ogc/occic/arb-98.html
[148]
On the Chinese legal system, see Pittman B. Potter, The Chinese Legal
System: Globalization and Local Legal Culture, Routledge Studies on China
(London, New York:
Routledge Curzen Publ., 2001).
[149] For a more
than gentle challenge to the international arbitral community for its failure to
accommodate the needs of African countries
in particular, see Amazu A.
Asouzu, International Commercial Arbitration and African States: Practice,
Participation and Institutional Development (Cambridge, U.K.: Cambridge Un.
Press, 2001). See too Karim,
M Bazlul, International Commercial Arbitration and African States:
Practice, Participation and Institutional Development, J. Third World
Stud.(Fall
2005).
[150]
On the “domestication” of international commercial arbitration
centers, see supra note 122. On the “judicialization” of
arbitration, see Richard B. Lillich and Charles N. Brower,
International Arbitration in the 21st Century: Towards "Judicialization" and
Uniformity (Irvington-on-Hudson, NY: Transnational Publishers, 1994).
See generally A.J. van den Berg, ed., International Commercial
Arbitration: Important Comtemporary Questions (Kluwer Law Intl., 2003); A.J.
van den Berg, International Arbitration in a Changing World (Cambridge,
Mass.: Kluwer Law & Taxation, 1993). An insidious quality attributed to
“domestication” of arbitration
is that nation states may attempt to
subsume international commercial arbitration within their domestic legal
systems. The fear
is that this will result in sacrificing key features of
international commercial arbitration: their independence from nation states
and
domestic courts of law. This “domestication” of international
commercial arbitration was a central criticism directed
at China’s
International Economic and Trade Arbitration Commission (CEITAC); although the
critique is less sustainable today
as CEITAC has modified its rules and
procedures to reflect international arbitration standards. On CEITAC, see
supra notes 100 &
104
[151] See
supra notes 67 &
73.
[152] For
commentary on this view, see generally Amazu A. Asouzu, supra note
149. See too Colloquium on International Commercial Arbitration, ADR
and African States, at
http://www.kcl.ac.uk/depsta/law/events/colloquium/speakers.html
[153]Ibid.
[154]
See generally Kenneth Kaoma Mwenda, Principles of
Arbitration Law (Parkland, Florida: Universl Publishers & Brown, Walker
Press, 2003). It should be noted that the focus on harmonisation in
law in
Africa includes an emphasis on arbitration. See e.g. Organisation pour
l'Harmonisation du Droit des Affaires en Afrique (OHADA), Treaty on the
Harmonization of Business Law in Africa. Title IV concerns arbitration (Juris
International).
[155]
An examination of Smit’s “roster of international arbitrators”
demonstrates that there are very few African arbitrators
compared to multitudes
of Americans and Europeans. See Hans Smit & Vratislav Pechota, eds.,
Guide to International Arbitration, Vol.4 (Huntington, NY: Juris
Publishing, 1998-). See too, The World Arbitration Reporter, Hans
Smit & Vratislav Pechota, eds. (Huntington, NY: Juris Pub., 1986-).
[156] See
generally Mwenda, supra note 155; Amazu A. Asouzu, supra note
150.
[157]
See Philip J. McConnaughay and Thomas B. Ginsburg, International
Commercial Arbitration in Asia Chapter 1 (2nd Edition, Huntington, N.Y.:
Juris Publ.
2006).
[158] In
fairness, there is an established tradition of international commercial
arbitration in Latin America, in some measure derived
from the strong Civilian
traditions in many countries in the region, established cultural and legal links
to Europe, and close proximity
and trade relations with the United States.
There are also well established arbitration conventions that regulate
arbitration across
the Americas. See e.g. Inter American
Convention on International Commercial Arbitration (Panama Convention),
Organization of American States, Treaty Series, no. 42. Adopted January 30,
1975, entered into force June 16, 1976; Inter American
Convention of Extraterritorial Validity of Foreign Judgements and Arbitral
Awards (Montevideo Convention)
Organization of American States, Treaty
Series, no. 51. Adopted August 5, 1979, entered into force June 14, 1980. On
arbitration
traditions in Central and Eastern Europe, see Neil Aitken and
Charles Spragge, A Guide to Arbitration and Litigation in Central and Eastern
Europe (London, U.K.: Suchen Debling, Cameron McKenna,
1998).
[159] Of note, William Slate,
supra note 1, cites a critical statement directed at transnational
arbitration by Mr. Ahmed El-Kosheri, a noted Arab arbitrator, at an
ICCA
conference in Seoul in 1996. “In general, the legal community throughout
the Arab world is still manifesting its hostility
to transnational arbitration
.... [T]he continuing attitude of certain western arbitrators being
characterized by a lack of sensitivity
towards the national laws of developing
countries and their mandatory application, either due to the ignorance,
carelessness, or
to unjustified psychological superiority complexes, negatively
affecting the legal environment required to promote the concept of
arbitration
in the field of international business relationships.” But see Arab Convention on
Commercial Arbitration, signed April 14, 1987, entered into force June 25,
1992, and deposited with the Secretary General of the League of Arab States.
See too Roger Alford, Islamic Law and International Arbitration, Opinio
Juris (2006), at
http://www.opiniojuris.org/posts/1148605897.shtml
[160]
See generally Leon E. Trakman, >From the Medieval Law Merchant to E-Merchant
Law, supra note
24.
[161] For a
now classical analysis of the influence of custom on the proliferation of
commercial arbitration, see Donald B. Straus, The Growing Consensus on
International Commercial Arbitration 6 Am. J. Int’l. L.709
(1974).
[162] On
investment disputes under Chapter 11 of the NAFTA, see Leon E. Trakman,
Resolving Disputes Under Chapter 19 of the NAFTA in Doing Business in
Mexico (New York: Transnational Leg. Publ., 2004 release); Leon E. Trakman,
Arbitrating Investment Disputes under Chapter 11 of the NAFTA 17
J.Int’l.Arb.285
(2001).
[163] For
commentary on property in relation to Chapter 11 of the NAFTA, and the
difficulties faced by arbitrators, see Marc Poirier, The NAFTA Chapter 11
Expropriation Debate Through The Eyes of A Property Theorist, 33 Envt'l
L.851 (2003); Celine Levesque,
Distinguishing Expropriation From Regulation:
Making the Link Explicit to Property, Kevin C. Kennedy, ed., The First
Decade of NAFTA: The Future of Free Trade in North America (Ardsley, New York:
Transnational Publishers,
2004).
[164]
See Trakman, ibid. Part of the problem perhaps lies in the
reluctance of the drafters of Chapter 11 of the NAFTA to deal the issue of
“what is
property” for the purpose of expropriation, given the
complex nature of property and problems in the interpretation and application
of
disparate conceptions of property. See further supra note
164.
[165] On the
FTAA, see http://www.ftaa-alca.org/ This
attempt to arrive at a free trade agreement across the Americas is not without
its detractors.
See http://www.globalexchange.org/campaigns/ftaa/
[166]
The doctrine originated in the jurisprudence of the European Court of Human
Rights, to allow for fundamental human rights to be interpreted
according to the
cultural traditions prevailing within individual nation states. While some view
the doctrine as encouraging healthy
cultural relativism, others believe that it
may lead to undue accommodations being made to the cultural peculiarities of and
in each
nation state. The real issue, however, is how courts – and as
proposed here, arbitrators – may invoke the doctrine in
practice.
See Shany, Yuval.,Toward a Ggeneral Margin of Appreciation Doctrine in
International Law? 16 Eur. J. Int’l L. 907 (2005); Aaron A. Ostrovsky,
What's So Funny About Peace, Love, and Understanding? How the Margin of
Appreciation Doctrine Preserves Core Human Rights within Cultural
Diversity and
Legitimises International Human Rights Tribunals, 1 Hanse Law Review 47
(2005); Yuval Shany, Toward a General Margin of Appreciation Doctrine in
International Law? 16 European J.Int’l.Law 907 (2006);
John
H. Barton, James
Lowell Gibbs, Victor
H. Li & John
Henry Merryman, Law in Radically Different Cultures (American
Casebook Series, 1983).
[167] To this
should be added that conceptions like the “rule of law” sometimes
have a different meaning and application in
different legal traditions that can
influence arbitration practice. See e.g. discussion on the rule of law in
Japan and China respectively, Carl F. Goodman, The Rule of Law in Japan: A
Comparative Analysis 213 (The Hague; London; New York: Kluwer Law,
International 2003); Karen Turner, James Feinerman & R. Kent Guy, eds.,
The Limits of the Rule of Law in China,. (Seattle: University of
Washington Press, 2000).
[168] In so
stating, it is relevant to note that the international arbitration community has
a revitalized interest in the suitability
of deciding cases ex aequo et bono
and by amiable composition, with the ICC having established a task force in
2005 with the mandate: “(1) to identify the essential
features of
“amiable composition” and of “ex aequo et bono
” and (2) to study the role of the arbitrators when acting as
“amiable compositeurs” or when deciding “ex
aequo et bono
” (e.g. jurisdictional, procedural or substantive problems that may
arise).” Task Force on “Amiable
Composition and ex aequo et
bono”, at http://www.iccwbo.org/policy/arbitration/id6566/index.html
See generally Leon E. Trakman, The Law Merchant, supra note 19, Chapter
1.
[169] On
different systems of control over international adjudication and arbitration
generally, see e.g. Michael W. Reisman, Systems of Control in
International Adjudication & Arbitration: Breakdown and Repair
(Durham, NC: Duke University Press,
1992).
[170]
See Leon E. Trakman and Sean Gatien, Rights and Responsibilities
Ch. 1 (Toronto: University of Toronto Press,
1999).
[171] See
e.g., UNCITRAL Notes on Organizing Arbitral Proceedings at http://www.uncitral.org/english/texts/arbitration/arb-notes.htm.
These notes are useful in helping practitioners to organize and plan for
arbitration. Online services provide further rules of
international, regional
and national arbitration, as well as judicial decision on arbitration, along
with journals, articles, commentaries
and newsletters on arbitration. See
e.g., ArbitrationLaw Online (Huntington, NY: Juris Publishing,
at http://www.arbitrationlaw.com/online/
updated daily, available by subscription). See too Frank-Fernd Weigand,
ed., Practitioner’s Handbook on International
Arbitration (Munich: Beck, 2002); Eric E. Bergsten (founding ed., Clive
M. Schmitthoff) International Commercial Arbitration (Dobbs Ferry, NY:
Oceana Publications, 1980-); Mark Cato, So You Want to Be an Arbitrator?
(London, UK: LLP Ltd., Legal Publishing
Division,1999).
[172]
For example, on a detailed compilation of arbitration treaties and conventions,
national laws, arbitration institutions, among other
resources, see,
Lawrence J Bogard & George W. Thompson, Transnational Contracts
(Dobbs Ferry, NY: Oceana Publications, 1997-.); Rosabel E.
Goodman-Everard’s The WWW Virtual
Library Section on Private Dispute Resolution; Electronic Information System for International Law
(EISIL)(created by the American Society of International Law); International Commercial
Arbitration: Resources in Print and Electronic Format; La Conciliation, La
Médiation Et L'arbitrage; T.M.C. Asser Institute for Private
and Public International Law - International Commercial Arbitration; The Scoreboard of Adherence
to Transnational Arbitration Treaties. One of the most comprehensive list of
books on arbitration, published by Kluwer International [now a division of Aspen
Books] can
be found at http://www.aspenpublishers.com/search.asp?Mode=SEARCH&keyword=arbitration&ISBN=&Author=&Sort=DEFAULT&SearchOption=Title
[173]
See for example:
http:www.tradelaw.net;
http:/www.lib.uchicao.edu/~llou/intlarb.html;
http://interarb.com/; http://www.llrx.com/features/arbitration2.htm#Locating%20Literature;
http://www.asser.nl/ica/index.htm;
http://www.crcica.org.eg/; http://www.cisg.law.pace.edu./vis.html;
http://www.arbitration-icca.org/directory_of_arbitration_website.html;
http://www.intute.ac.uk/socialsciences/cgi-bin/search.pl?term1=international+commercial+arbitration&limit=0;
http://www.lovells.com/Arbitration/;
http://www.laweye.de/; http://www.uni-muenster.de/Jura.iwr/english/berger/;
http://www.cidra.org/; http://www.alca-ftaa.org/busfac/canal_e.asp; http://interarb.com/malqr/.
[174] William K.
Slate II, supra note 1.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/UNSWLRS/2007/29.html