Author: Hilary Heilbron*
Published: March 2020
Practice and Procedure
International Institutions and Rules
Apportioning of Costs
At a time when the world order has been turned on its head and strange relationships are formed, when international allies loosen their alliances and foes become, at least superficially, friends, one could not be criticized for wondering how normative internationalism has become, at least at a political level. The forces of different cultures, different national aspirations and, of course, individual leaders have all played their part.
Internationalism works at different levels, not just political. It transcends social intercourse, global commerce, technology and many other aspects of human behaviour. This article looks at internationalism in the context of the process of international arbitration and asks to what extent is the process embedded in an international consensus as to how it should operate: in other words, whether there exist international norms, and the extent to which such norms are surrendered to national and cultural differences of the particular seats and players involved and thus provide no more than a default position or starting point.
Is this adjustment for national and cultural differences part of the flexibility of the process which we all support or is it a weakness in making the process too unpredictable? Just because one has always done something one way – does it mean one always should? As the following proverb epitomises: “If you always do what you always did, you will always get what you always got.”
This article does not attempt to explore the erudite general works on comparative cultures. In the context of this discussion the issue relates more to culture in the sense of how it impacts a party’s an counsel’s approach to dispute resolution and how the national practices and laws of the various legal participants involved have shapted their respective approaches to arbitral procedure.
*Solicitor at Brick Court Chambers. http://www.brickcourt.co.uk/our-people/ profile/hilary-heilbron-qc. This article is based on the Keynote Address given on 2 November 2018 before the Fordham University School of Law Thirteenth Annual International Arbitration and Mediation Conference