Author: Ignacio Gómez-Palacio**
Published: July 2010
This article attempts to provide a sense of how civil-law litigators who practice international commercial arbitration, feel that they are crossing a troubling and surprising border. The journey takes them away from their own field of procedure, which might be compared to a comfortable house full of easy chairs and familiar furnishings, into a mysterious haunted mansion where English is spoken and where at any moment a sinister butler (representing the procedural system of the common law) may leap out of the shadows. To a slightly lesser extent, the same thing is happening to other lawyers, chiefly those in the English speaking world, who enter the arbitration arena. This encounter raises suspicions on both sides, since neither knows what it is likely to find. That depends to a large extent on the knowledge, attitude and practical tools of the litigants involved Bernardo Cremades has indicated that crossing this frontier creates risks, of which the most important can be summarized as “the possibility of mutual incomprehension, confusion and cultural confrontation.” Cremades highlights the danger of assuming that a firm of lawyers familiar with litigation will also have the ability to conduct international commercial arbitration. The basic reason for this arises from the fact that these litigators are accustomed to and know how to carry on litigation according to the laws and customs of a given country, while international commercial arbitration does not confine itself to the procedural rules of any one country. We might add that nothing irritates a litigator more than surprise, especially those litigators who practice under the common-law system.
Even though this article will mainly discuss the surprise felt by a civil-law lawyer at the “Americanization” or “Anglo-Saxonization”of international commercial arbitration, it will also address what litigators trained in the United States call “the internationalization of arbitral procedure.” By this, they mean that what previously took place in U.S. arbitral procedure, in which one simply gave notice of an intent to submit to arbitration, identifying the area of dispute in a brief writing and leaving the issues of proof for the hearing, is now being replaced by a proceeding requiring multiple written submissions and presentation of evidence before the hearing is convened. Added to this is the discomforting requirement that the panel must issue a “reasoned” award. Also causing them astonishment is the elimination of the party-appointed arbitrator acting as that party’s representative to which they are accustomed, because of the adoption from European law of the criterion of the neutrality of the entire arbitral tribunal. Tom Ginsburg states: …
*This article was translated into English by Professor Garrett Epps, Constitutional Law Professor at the University of Baltimore, author of books and articles on constitutional law, translator.
**Founding partner of Gómez-Palacio y Asociados in Mexico City; Former U.N. Senior Counsel; Law Professor at Universidad Iberoamericana, Mexico City; National and international commercial arbitrator; Former President of Instituto Mexicano Para la Justicia, A.C. Author of law books and articles regarding investment law, arbitration, justice and legal education. This article is based on an article originally published at Jurídica, Universidad Iberoamericana, No. 36, 2006. The author wishes to thank Ms. Monica Perzabal Soto for her help. The article was rethought and updated during June/July 2009.