Author: Troy L. Harris*
Published: August 2013
In the practice of international arbitration one encounters many (sometimes conflicting) practices, habits, customs, norms, and expectations. Perhaps not surprisingly, therefore, many discussions of international arbitration seek to bring order to the analysis of particular problems by reference to the “developed” or “universally recognized” view of this or that issue or what the rule is in “[m]ost jurisdictions” without clearly explaining whose votes count in determining whether the rule is “universally recognized” or what makes a view “developed.” To be sure, some of these practices, etc. have found expression in international instruments, most notably the New York Convention3 and various domestic laws, such as the English Arbitration Act. At least within the jurisdictions adopting such instruments and laws, one may classify those practices as positive law. Outside those jurisdictions, however, their authority must depend upon the extent to which they reflect customary law. Other practices are embodied in the pronouncements of non-state actors interested in international arbitration, and their authority is more clearly a matter of customary, rather than positive, law. Such pronouncements include the IBA Rules on the Taking of Evidence in International Arbitration and the UNCITRAL Model Law on International Commercial Arbitration. Various accounts have been given of these customary …
*Assistant Professor of Law, University of Detroit Mercy School of Law. J.D., University of Michigan (Ann Arbor); Ph.D., University of Chicago. For many helpful comments and criticisms I thank my colleagues at the University of Detroit Mercy School of Law faculty scholarship workshop, the participants at the University of Missouri works-in-progress conference held in 2011 in conjunction with its Center for Dispute Resolution annual symposium, and the editors of The American Review of International Arbitration. All errors of omission and commission remain my own.