Summary

In the present-day globalization of trade and commerce, international commercial arbitration has been increasingly seen as an efficient, economical and effective alternative to litigation for settling commercial and other disputes. Although, in principle, the basis of arbitration is the free will of the parties to agree to resolve their disputes through arbitration, in practice, parties do not hesitate to opt for litigation when the outcome does not favour them. To better protect their interests the parties often have recourse to legal experts as arbitrators, which has the effect of making arbitration similar to litigation, often encouraging the importation of typical litigation processes and procedures into arbitration practices. This in turn leads to an increasing mixture of discourses as arbitration becomes, as it were, ‘colonized’ by litigation practices, threatening the integrity of arbitration practice to resolve disputes outside of the courts, and thus going contrary to the spirit of arbitration as a non legal practice. As Fali Nariman, one of the most distinguished international scholars in International Commercial Arbitration points out, International Commercial Arbitration has become almost indistinguishable from litigation, which it was at one time intended to supplant.

Drawing on narrative, documentary and interactional data, this project will investigate the extent to which the integrity of arbitration principles is maintained in arbitration practice. The project will focus on the nature and the extent of the colonization of commercial arbitration practices by litigation practices in international contexts, and will explore the motivations for such an interdiscursive process. The evidence for the study will derive from a number of integrated sources of data. These will include primary documentary data, such as previous relevant legal judgments and arbitration awards, appeals to written authorities, published outcomes of arbitration; supporting narrative and ethnographic data derived from interviews with expert participants in the arbitration process internationally focusing on critical moments in the arbitration process in key sites; complementary data derived from a discourse analytical identification of the significant communicative characteristics of such critical moments, and corroboration of such characteristics by sampled interactions of arbitration proceedings.

Objectives

Our key objective is to investigate the ‘integrity’ of international arbitration practices, by a close analysis of various sets of complementary textual, narrative, and discourse data. In particular, we wish to determine the extent to which these practices have been interdiscursively “colonized” by litigation practices, especially in terms of the intentions, purposes, processes, procedures, and the shared expertise expected, on the part of the participants involved. More specifically, the project will focus on the following three part investigation of ‘arbitration in action’ in international contexts.

  • To develop a set of specific corpora of spoken and written data from arbitration, mediation and litigation practices using practice-based, law-based, and language-based resources. These data sets will include primary documentary data such as previous legal judgments and arbitration awards, appeals to written authorities, published outcomes of arbitration; supporting narrative and ethnographic data derived from interviews with expert participants in the arbitration process internationally focusing on critical moments in the arbitration process in key sites; complementary data derived from a discourse analytical identification of the significant communicative characteristics of such critical moments, and corroboration of such characteristics by sampled interactions of arbitration proceedings.
  • To assemble a set of comparable analyses from international sites so as to be able to draw more generalisable conclusions concerning the nature and function of arbitration, mediation and litigation practices in different arbitration systems, the extent of, and motivation for, any system-specific influences on such processes and practices, and the degree to which they are more or less resistant to influences from litigation
  • Drawing on the outcomes of (1) and (2) above, to develop a grounded and contextualized understanding of the degree of interdiscursivity among mediation, arbitration, and litigation practices in international contexts.

The relevance of the research is threefold: it will contribute to our understanding of mediation-arbitration-litigation perspectives in the context of ‘arbitration in action’; it will provide an underpinning for international policy on arbitration practice; and it will provide the evidential basis for enhancing arbitration practitioner training.

The research findings will inform specialists of the increasing influence of litigative procedures on international commercial arbitration practices by offering discourse, textual and narrative-based evidence for such practices. At the same time, it will provide a basis for raising public awareness about the implications of such influences, in particular their impact on the conduct of arbitration proceedings. Taken together, these outcomes will contribute significantly to the strengthening of international commercial arbitration as a non-litigative practice for handling commercial disputes and will enhance the satisfaction of the involved parties. The research data and the analyses will also feed directly into the development of authenticated professional development packages for international arbitration training.