Author: Leon E. Trakman*
Published: October 2007
International and Transnational Law
Description: We lawyers have often invoked “cultural differences” to mean a clash of legal processes such as the different procedures used in civil and commonlaw 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 speech delivered on May 18, 2004, at the 17th ICCA conference in Beijing, China.
Codes, laws and guidelines governing international commercial arbitration developed by such organizations as the International Court of Arbitration (“ICA”), the International Bar Association (“IBA”) and the International Chamber of Commerce (“ICC”) have been drafted against the background of common-law and civil-law values. In balancing these two great legal traditions, it was assumed that together they represent a composite legal tradition governing international commercial arbitration. The result of that assumption was decades of fine work enshrining international arbitration doctrines, principles, and rules of law and procedures that blend these two important legal traditions. From the doctrine of freedom of contract to specific rules of evidence and procedures that govern arbitral hearings, the international arbitration community has sought to maintain the respected legal traditions that lawyer-arbitrators and counsel find familiar and comfortable.
*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.