Discourse and Practice in International Commercial Arbitration

On 24 May 2013 I gave a presentation by videolink to a conference on “The Roles of Psychology in International Arbitration“, held in London at Brunel University, in the session related to international arbitration awards. This drew partly on Hong Kong based interdisciplinary research project on discursive practices in international arbitration, with considerable emphasis on Asia-Pacific developments. The presentation outline is below or here (download PDF file).

A. (Ltd) Research so far on ‘cultural’ influences on awards / writing
a. Social psychology / experiments: focus on substantive outcomes
i. Eg Friedman et al: Chinese (vs US) arbitrators make higher awards for inter-firm contract violations (not prone to attribute causes holistically / externally, when observing group behaviour!)
b. Socio-linguistics / discourse analysis: focus on form / process
i. HK Research Grants Council project – eg (2012 book)
1. Gotti (et al): 20 commercial arb awards in Italy over last decade – lexical & syntactic style similar to court judgments (even when occasionally by non-lawyers)
2. Bhatia et al: 18 ICC awards from its Bulletin (when?) – similar findings, but less reasons (ltd appeal / ‘precedent’), save time for themselves and parties?)
3. Breeze: ‘appraisal analysis’ of 6 dissenting & 2 concurring ICSID awards (in English) over 20 years:
adjectives & adverbs reveal underlying value system where argument valued for clarity, consistency & persuasiveness (not ‘affect’); normality of understandings; propriety (of procedures); veracity (uncovering truth); authoritative ‘arbiters of importance’ (p125)
B. Methodological challenges re each strand of prior research:
a. Representativeness?
i. Subjects: actual arbitrators •; domestic vs int’l experience?
ii. Scenarios: info types •; yet clear facts, how much detail?
iii. Time constraints on subjects: exacerbate cultural biases •; yet most awards are written under less time pressure?
iv. Interaction among (int’l) arbitrators (especially Chair)?
b. Accessibility?
i. Confidentiality of awards (including over time)
1. Especially ICA (cf Bhatia et al: redacted ICC awards)
2. Even ISA (ICSID, less so with UNCITRAL Rules)
ii. Sample bias – also more generally: eg ‘easier’ cases settle?
iii. (Second) language of the arbitration / award
iv. Type of dispute: eg Sales vs (more relational) long-term services contract
v. Type of arbitrator:
1. Party-appointed: less role in drafting award (unless dissent etc •), may still see role still as more of an advocate (US?) especially if aggressive party (large PRC co – Australia’s TCL saga?)
2. Vs sole or jointly-appointed arbitrator (maybe depends also on whether apt by parties or ‘their’ arbitrators, vs by arb institution)
C. Further ways forward:
i. More qualitative research:
1. Interviews of arbitrators, in-house / counsel, commercial (non-legal) users
2. multi-lingual
3. focused on sole arbitrators
4. especially documents-only (and/or expedited) arbitrations (cf perhaps WIPO Domain Name DR?)
ii. Including surveys, but:
1. Primarily to elicit invitations for interviews! (Like Christian Buhring-Uhle’s PhD/book.)
2. NB: even UCL / PwC survey respondents are not a representative / strictly generalisable sample!

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.