Discourse and Practice in International Commercial Arbitration

Issues, Challenges and Prospects

Christopher N. Candlin, Vijay K. Bhatia

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317149941
• Edition: 1
• Topic: Law
• Subtopic: Arbitration, Negotiation & Mediation in Law
• Index: Law

It is increasingly held that international commercial arbitration is becoming colonized by litigation. This book addresses, in a range of ways and from various locations and sites, those aspects of arbitration practice that are considered crucial for its integrity as an institution and its independence as a professional practice. The chapters offer multiple perspectives on the major issues in play, highlighting challenges facing the institution of arbitration, and identifying opportunities available for its development as an institution. The evidence of arbitration practice presented is set against the background of practitioner perceptions and experience from more than 20 countries. The volume will serve as a useful resource for all scholars and practitioners interested in the institution of arbitration and its professional practices.

PART I
Issues and Challenges

Chapter 1
International Commercial Arbitration Practice: A Discourse-based Perspective

Vijay K. Bhatia, Christopher N. Candlin and Maurizio Gotti

International commercial arbitration (ICA), as originally proposed by the United Nations Commission on International Trade Law (UNCITRAL), and established by the United Nations General Assembly by its Resolution 2205 (XXI) of 17 December 1966 was meant to promote the harmonization and unification of international trade law. The UNCITRAL also prepared a model law on international commercial arbitration, which was adopted by the United Nations General Assembly on 21 June 1985, and was recommended for adoption as the UNCITRAL Model Law on International Commercial Arbitration. Although the Model Law (ML) was not binding, the United Nations (UN) recommended its adoption and incorporation into the domestic law of individual member states. The main objective of promoting international arbitration was to provide an ‘alternative’ to litigation to resolve commercial disputes in cross-border contexts.

Today, international arbitration is the most widely used alternative dispute resolution (ADR) method to resolve commercial disputes between parties. International commercial arbitration is considered a consequence of party agreement as it crucially depends on the parties’ agreement to resolve disputes through private adjudication by a single arbitrator, or a tribunal consisting of more than one, appointed in accordance with rules of a specific arbitration institution that the parties themselves have agreed to adopt, usually by including an arbitration clause in their contract. The practice of international arbitration has thus developed in a manner to allow parties from different linguistic, legal and cultural backgrounds to resolve their disputes with minimum interference from the courts.

In arbitration, parties or their representatives, often legal counsels, present a dispute to an impartial single arbitrator or an arbitration tribunal to issue an award, which is binding for the disputing parties. The award is generally non-appealable in a court of law. In arbitration, the parties at dispute have considerable input in the selection of the arbitration tribunal, and also in the choice of processes and procedures they would like the tribunal to follow, including the choice of language, the seat of arbitration, as well as the arbitration rules according to which the resolution is negotiated.

Arbitration is thus one of the most appropriate alternative dispute resolution mechanisms when the disputing parties fail to resolve their dispute on their own, and want a third party to resolve their dispute. Their main objective is to avoid the time and expense of litigation where they have absolutely no control over the decision-making process. As mentioned earlier, the decision of the arbitration tribunal is enforceable, and cannot be challenged in a court of law, except on procedural grounds under a very restricted set of conditions. So the main advantage of arbitration is that it is like litigation in effect, in that it is decided by a neutral arbitrator or arbitration tribunal, but unlike litigation, it is informal, expedient, economical, private and confidential in nature, and at the same time, gives sufficient voice and freedom to disputing parties in the way it is actually conducted.

However, it has been recently observed that arbitration as a non-legal practice is being increasingly influenced by litigation practice, a development which seems to be contrary to the spirit of arbitration to resolve disputes outside of the courts. In order to investigate the extent to which the ‘integrity’ of arbitration principles is maintained in international commercial arbitration practice, a group of discourse analysts in Hong Kong designed an international research initiative, drawing on discourse-based data (narrative, documentary and interactional) to explore the motivations for such an inter-discursive process which appears to be leading to increasing ‘colonization’ of arbitration practice by litigative processes and procedures.

This study has built on a previous international research project which investigated ‘The generic integrity of legal discourse in international commercial arbitration in multilingual and multicultural contexts’ by providing discourse-and genre-based analyses of arbitration laws from a number of countries and jurisdictions, by means of pooling research from a number of teams of specialists in discourse analysis drawn from more than 12 countries. This previous research project was based on the understanding that although most of the national arbitration laws followed the spirit of the UNCITRAL Model Law, they were nonetheless formulated and applied differently in different countries, and were often constrained by variations in the languages used, the specific legal systems they were grounded in, and, in addition, the socio-political factors that operated in specific contexts. The project established a network of collaboration from a multidisciplinary group consisting of more than 30 researchers from 13 different countries, which included Brazil, the People’s Republic of China, the Czech Republic, Croatia, Denmark, Finland, France, Germany, India, Italy, Japan, and Malaysia. In terms of outcomes, the project has disseminated its findings through several edited volumes together with a special issue of an international journal, in addition to two international conferences organized by the project (see references below). Relying on the degree of interest created in the overall theme, the international collaboration, and the excellent research opportunities for interdisciplinary and international teamwork provided by this initial project, the research teams decided to carry this research forward by focusing on the actuality of arbitration practices in a grounded and contextualized manner across linguistic, socio-cultural, political and legal boundaries.

The main objective of this second project is to analyze arbitration in action by undertaking a textual, narratological and discourse-based analysis of primary and secondary data drawn from arbitration practice. Its applied purpose is to explore the degree of integrity of arbitration practice in international contexts. Arbitration practice, in this context, is viewed as a professional process which lies at different points on a professional and discursive continuum from mediation–arbitration–litigation, and which offers a range of critical moments and sites where law and language intersect, offering the project teams a range of research foci.

Taken together, the outcomes from this subsequent project were to contribute to the strengthening of international commercial arbitration as a non-litigative practice for handling commercial disputes, and to enhance the satisfaction of the involved parties from different cultures, linguistic and socio-political backgrounds and legal systems.

The present volume of edited chapters is meant to showcase some of the findings from international arbitration practitioners from law as well as from arbitration and academic scholars from discourse analysis based on their research during the last few years. Each of the chapters in the volume contains a specific aspect of international commercial arbitration practice. The volume opens with the identification of some of the general issues and challenges, and gradually moves on to issues specific to certain contexts and jurisdictions. Some of the main issues addressed in the volume include ambivalence of international arbitration, witness-examination, evidence, enforcement of awards across jurisdictions and territorial boundaries, language and power in arbitration proceedings, analysis of concurring and dissenting opinions, accountability and voices in arbitration awards, cross-national comparisons of arbitration with other forms of alternative dispute resolution mechanisms, arbitrators’ neutrality in arbitration process, confidentiality and publicity in arbitration in the public sphere, and the general issue of ‘colonization’ of arbitration by litigation, a theme which runs right through most of the chapters. The final chapter then identifies and offers a perspective on the general issue of ‘contested identities’ in international commercial arbitration practice, seen primarily through the viewing glass of interdiscursive exploitation of disciplinary and professional space.

Research Project Publications

Bhatia, Vijay K., Candlin, Christopher N., Engberg, Jan and Trosborg, Anna (Eds) (2003): Multilingual and Multicultural Contexts of Legislation: An International Perspective. Frankfurt am Main, Peter Lang.

Bhatia, Vijay K., Candlin, Christopher N. and Gotti, Maurizio (Eds) (2003): Arbitration in Europe: Legal Discourse in a Multilingual and Multicultural Context. Bern, Peter Lang.

Bhatia, Vijay K. and Engberg, Jan (Eds) (2004): HERMES, Journal of Linguistics, a special issue, Vol. 32.

Bhatia, Vijay K., Engberg, Jan, Gotti, Maurizio and Dorothee, Heller (Eds) (2005): Vagueness in Normative Texts. Bern, Peter Lang.

Bhatia, Vijay K., Candlin, Christopher. N. and Engberg, Jan (Eds) (2008): Legal Discourse Across Cultures and Systems. Hong Kong, Hong Kong University Press.

Bhatia, Vijay K., Candlin, Christopher. N. and Evangelisti, Paola (Eds) (2008): Language and Legal Concepts Across Systems and Cultures. Bern, Peter Lang.

Bhatia, Vijay K., Candlin, Christopher. N. and Gotti, Maurizio (Eds) (2010): The Discourses of Dispute Resolution. Bern, Peter Lang.

Bhatia, Vijay K. (Ed.) (2011): Interdiscursive Colonisation of International Commercial Arbitration Practice, World Englishes, Vol. 30, No.1 (76–80).

Research Team

Principal Investigator

Vijay K. Bhatia, City University of Hong Kong

Co-Investigators

Christopher N. Candlin, Macquarie University, Australia

Rajesh Sharma, City University of Hong Kong

Christopher To, Hong Kong Arbitration Centre

International Collaborators

Australia

Luke Nottage, Sydney Law, Australia

Brazil

Celina Frade, Rural University of Rio de Janeiro, Brazil

Brunei/Singapore

Paroo Nihalani, Universiti Brunei Darussalam

Sujata Kathpalia, Nanyang Technological University, Singapore

Colin Y.C. Ong, Colin Ong Legal Services in Brunei Darussalam

Croatia

Susan Šarčević, Faculty of Law, University of Rijeka, Croatia

Denmark

Jan Engberg, Aarhus School of Business, Denmark

Finland

Tarja Salmi-Tolonen, University of Joensuu, Finland

France

Anne Wagner, Université du Littoral Côte d’Opale, France

Hong Kong

Christoph Hafner, City University of Hong Kong

Italy

Maurizio Gotti, Ulisse Belotti, Stefania Maci, Michele Sala, Patrizia Anesa,

Larissa D’Angelo, University of Bergamo, Italy

Giuliana Garzone, Paola Catenaccio, Chiara Degano, University of Milan, Italy

Paola Evangelisti, University of Rome for Sport & Movement, Italy

Girolamo Tessuto, Seconda Università degli Studi di Napoli, Italy

India

Gajender Kumar, Advocate, New Delhi, India

Ireland/France

Sophie Cacciaguidi-Fahy, The National University of Ireland, Ireland

Japan

Yasunobu Sato, University of Tokyo, Japan

Iwase, Maomi, University of Hyogo, Japan

Ric Powell, Nihon University, Tokyo, Japan

Macau

Jane Lung, Macao Polytechnic Institute, Macau

Malaysia

Azirah Hashim, University of Malaya, Malaysia

Peoples Republic of China

Wang Wenying, Arbitration Research Institute, China

Yu Jianlong, CIETAC, China

Poland

Joanna Jemielniak, Kozminski Business School, Warsaw, Poland

Spain

Ignacio Vazquez Orta, Rosa Lorés, Isabel Corona, University of Zaragoza, Spain David J.A. Cairns, Partner in Dispute Resolution, B. Cremades y Asociados

United Kingdom

Janet Cotterill, Cardiff University, United Kingdom

John Jarvis, Advocate and Arbitrator, London, United Kingdom

PhD Students

Han Zhengrui, City University of Hong Kong

Patrizia Anesa, University of Bergamo, Italy

Larissa D’Angelo, University of Bergamo, Italy

Chiara Degano, University of Milan, Italy

Laura Martínez Escudero, University of Zaragoza, Spain

Diana Gine...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Figures
• List of Tables
• Preface
• Acknowledgements
• PART I ISSUES AND CHALLENGES
• PART II ANALYSES AND EVIDENCE
• PART III PROSPECTS AND CONCLUSIONS
• Index