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Leon Trakman*
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

* 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.

The speech, “Culture Connection in International Commercial Arbitration”, is reproduced in the
Dispute Resolution Journal (August-October 2004) and at See too the website of the
International Council for Commercial Arbitration [ICCA] at http://www.arbitration-

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

I. Distinguishing a Legal Culture from a Legal Tradition

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

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; International Arbitration Institute, at For a useful biography of materials on international commercial arbitration,
see Jean M. Wenger, International Commercial Arbitration: Locating the Resources revised ed.., at
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,

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

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).
See Jean-Jacques Rousseau, The Social Contract (1762), available at; 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).
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.
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).
See James L. Gibson and Gregory A. Caldeira, The Legal Cultures of Europe, 30 Law and Soc.
Rev.55 (1996).

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

See Wolfgang Wiegand, Americanization of Law: Reception or Convergence? In Legal Culture and
the Legal Profession, infra note 8.
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 See too infra note 17.
Ehhard Blankenberg, Patterns of Legal Culture: The Netherlands Compared to Neighboring
Germany, 46 Am. J. Comp. Law 1 (1998).
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).
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).
See Henry John Ruby, Roman Private Law in the Times of Cicero and of the Antonines (Ann Arbor,
Michigan: Un.Mich.Press, 2006).
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,

“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

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).
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).
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)
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).
See Leon E. Trakman, The Law Merchant: The Evolution of Commercial Law (Littleton, Colorado:
Fred B. Rothman, 1983).
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).
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).
See Leon E. Trakman, The Medieval Law Merchant, 12 J. Maritime Law & Commerce 1 (1980).
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

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

II. Determining the Nature of a Legal Culture

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.
See text accompanying notes 168 & 169.
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).
See 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

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

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).
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).
See generally on such debate in relation to the judicial system, Legal Culture and Judicial Reform at
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.”

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

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
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).
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.
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.
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
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
See On the conduct of business in Japan, see e.g. Kitagawa
Zentaro, Doing Business in Japan - Contracts and Business Activities, Commercial Instruments (New

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

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).
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).
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
41112278&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.
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
See further infra note 130.
See further infra note 139-141.
On the distinction between ad hoc and non-institutional arbitration, see infra text accompanying note
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

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

III. The Common and Civil Law Traditions

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

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.
See further infra text accompanying note 114.
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.
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).
See Leon Sheleff, The Future of Tradition: Customary Law, Common Law and Legal Pluralism
(London, New York: Routledge, 2000).

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

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).
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).
On the evolution of the Civil and Common Law traditions, see supra notes 14-19.
On the “Americanization” of law, see e.g. supra note 8.
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 For an English
translation of the German Civil Code, see http://www.gesetze-im- (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
On the variety of state arbitration associations, see infra note 130.
On European arbitration, see supra note 13.
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
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);; See too World

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

Trade Organization Dispute Settlement Decisions: Bernan's Annotated Reporter, vols. 1& 2 (Lanham,
MD: Bernan Press, 1998).
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.
See generally infra Section IV.
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).
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).
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).
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).
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.

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

See Sandra Fullerton Joireman, Inherited Legal Systems and Effective Rule of Law: Africa and the
Colonial Legacy, 39 J. Modern African Studies 571 (2001).
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).
See e.g. John Merryman, The Civil Law Tradition: Europe, Latin America, and East Asia
(Contemporary Legal Education Series, 1994).
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).
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); .
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).
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: 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.
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).

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

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,
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).
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).
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.
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).
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.
See e.g. Barbara Pasa & Gian Antonio Bennacchio, The Harmonization of Civil and Commercial
Law in Europe (Budapest: Central European Un. Press, 2006).

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?

IV. Legal Tradition in International Commercial Arbitration

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

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).
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).
See e.g. O.F. Robinson et al., An Introduction to European Legal History: Sources and Institutions
(Nashville, Tenn: Abingdon, 3rd ed. 2000).
See text infra Section IV.
See supra note 1.
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 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

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

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;
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. 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
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.
On the ICC, see infra note 97. On arbitration before the International Center for Dispute Resolution
of the AAA, see 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
On the Swiss Arbitration Association, see; On the Australian Centre
for International Commercial Arbitration, see 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

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

Address at International Conference on International Commercial Arbitration, 9 March 1999), at
See further infra text accompanying note 130. See too, Leon E. Trakman, Appropriate Conflict
Managemen , 2001 Wisconsin L. Rev. 919.
On the ICC court, see 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
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).
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).
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; 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).
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

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

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).
See Alternative Dispute Resolution, Introduction at
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).
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
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

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

V. Re-conceiving of an International Arbitration Tradition

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

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).
See supra note 27 and Section VI.
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.
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\LIVESITE\focusArea\international\A
AA175current.htm; Mediation and Arbitration Rules and Procedures of the Commercial Arbitration
and Mediation Center for the Americas [CAMCA] at\LIVESITE\focusArea\international\c
amca_rules.html ; Rules of Procedure of the Inter American Arbitration Commission [IACAC] at; Supplementary Rules Governing the
Presentation and Reception of Evidence in International Commercial Arbitration of the International
Bar Association [IBA] at
From the International Bar Association [IBA]; IBA Rules on Taking Evidence in International
Commercial Arbitration, at; Rules and Procedures of the
International Court of Arbitration [ICC] at; Pre arbitral Referee Rules of the ICC at

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 ; Rules of the

ICC as the Appointing Authority in UNCITRAL or Other Ad Hoc Arbitration Proceedings at; ICSID Rules of Procedure
for Conciliation and Arbitration Proceedings at; ICSID Additional Facility Rules at
(; Rules of the London Court of International
Arbitration [LCIA] at; Tribunal Rules of Procedure (Iran-
United States Claims Tribunal) at ; Rules of Procedure of the
Permanent Court of Arbitration at; UNCITRAL Rules of
Arbitration ;
UNCITRAL Procedures for Cases under the UNCITRAL Rules of Arbitration;\LIVESITE\focusArea\international\A
AA112-0900.htm#Article_1 For additional commentary on these varied rules, see
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
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
For a list of arbitration rules and procedures, see infra note 130. See too, Country Listing, i.
National Law,; West Law’s
International Commercial Arbitration Library, Institutions, at

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

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 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 and 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,; International Law Reports, (Cambridge, England:
Grotius Publications, 1950-); Iran-U.S. Claims Tribunal Awards and Decisions ;;; 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; Reports of International Arbitral Awards Vol 1
(United Nations, 1948 -);Transnational Law Database (TLDB) at; UNILEX on arbitration awards and decisions related to the CISG and UNIDROIT
at; International Commercial Arbitration Decisions and Awards by Westlaw at
R1.0&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;; Albert Jan van den Berg, ed., Yearbook, Commercial
Arbitration, Vol. 1 (Deventer, Netherlands: Kluwer Law International, Vol. 1 (1976).
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
qual_search.xml; ICC Expertise Dispute Resolution Services at See also Smit’s Roster of International
Arbitrators (Guide to International Arbitrators, 3rd ed), supra note 12

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

VI. The Private and Public Traditions of International Arbitration

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

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
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 For a comprehensive database on the CISG, see
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

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

Protocol on Arbitration Clauses, 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
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,;
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
%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; Gregory
Shaffer, The Challenges or WTO Law: Strategies for Developing Country Adaptation,
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

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?

VII. Culture Change or Culture Shock?

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 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.
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).
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).
See Convention on the Execution of Foreign Arbitral Awards, at, 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, at; S.M.Schwebel, International Arbitration: Three
Salient Problems (Cambridge, UK: Grotius Publications, 1987).

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

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.;; 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).
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.
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 ; Permanent Court of
Arbitration Model Clauses (The Hague),;
WESTLAW’s International Commercial Arbitration Model Clauses at
R1.0&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,

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

North York, Ontario: CCH Canadian Limited, 1996); Marcus Jacobs, Commercial Arbitration: Law
and Practice, Four Volumes (Sydney, Australia: The Law Book Company, 1990-1992).
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 On sports arbitration, see Court of Arbitration for Sport (CAS) at On intellectual property, see esp., The World Intellectual Property
Organization Arbitration and Mediation Center
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.
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
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
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 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

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

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 See further supra note 119 and infra note 146.
For conferences and papers on the development of an Internet culture, see
139 See See too Leon E. Trakman, From the Medieval Law
Merchant to E-Merchant Law, supra note 26.
The American Arbitration Association, including its International Center for Dispute Resolution
provides for online filling. See Similarly, the Hong Kong
International Arbitration Centre (HCIAC) does so as well in domain name, e-commerce and Internet
Keyword disputes. See 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.
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 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).

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

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
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. 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);
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 See too on the
Association for International Arbitration (AIA),; The Institute
for Transnational Arbitration (ITA), a division the Center for American and Transnational Law, at 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).
On the cost and time associated with arbitration, see supra note 92.

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?

VIII. A Culture of Inclusion?

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
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.
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 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
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).
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).
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,

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

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
See supra notes 67 & 73.
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
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).
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.,

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

See generally Mwenda, supra note 155; Amazu A. Asouzu, supra note 150.
See Philip J. McConnaughay and Thomas B. Ginsburg, International Commercial Arbitration in
Asia Chapter 1 (2nd Edition, Huntington, N.Y.: Juris Publ. 2006).
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
See generally Leon E. Trakman, From the Medieval Law Merchant to E-Merchant Law, supra note

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

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).
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).
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,
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.
On the FTAA, see This attempt to arrive at a free trade agreement across
the Americas is not without its detractors. See
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,

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

X. Reflections

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

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,
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).
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 See generally Leon E. Trakman, The
Law Merchant, supra note 19, Chapter 1.
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).
See Leon E. Trakman and Sean Gatien, Rights and Responsibilities Ch. 1 (Toronto: University of
Toronto Press, 1999).

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

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

See e.g., UNCITRAL Notes on Organizing Arbitral Proceedings at 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 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).
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 Directory of Arbitration Websites and Information on Arbitration Available Online. For
searchable databases on international commercial arbitration, see 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

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

See for example:; http:/;;;;;;;
bin/;;; http://www.uni-;; http://www.alca-;
William K. Slate II, supra note 1.