CLA Centro Linguistico di Ateneo

Summary

In the present-day globalization of trade and commerce, international commercial arbitration has been increasingly seen as an efficient, economical and effective alternative to litigation for settling commercial and other disputes. Although, in principle, the basis of arbitration is the free will of the parties to agree to resolve their disputes through arbitration, in practice, parties do not hesitate to opt for litigation when the outcome does not favour them. To better protect their interests the parties often have recourse to legal experts as arbitrators, which has the effect of making arbitration similar to litigation, often encouraging the importation of typical litigation processes and procedures into arbitration practices. This in turn leads to an increasing mixture of discourses as arbitration becomes, as it were, ‘colonized’ by litigation practices, threatening the integrity of arbitration practice to resolve disputes outside of the courts, and thus going contrary to the spirit of arbitration as a non legal practice. As Fali Nariman, one of the most distinguished international scholars in International Commercial Arbitration points out, International Commercial Arbitration has become almost indistinguishable from litigation, which it was at one time intended to supplant.

Drawing on narrative, documentary and interactional data, this project will investigate the extent to which the integrity of arbitration principles is maintained in arbitration practice. The project will focus on the nature and the extent of the colonization of commercial arbitration practices by litigation practices in international contexts, and will explore the motivations for such an interdiscursive process. The evidence for the study will derive from a number of integrated sources of data. These will include primary documentary data, such as previous relevant legal judgments and arbitration awards, appeals to written authorities, published outcomes of arbitration; supporting narrative and ethnographic data derived from interviews with expert participants in the arbitration process internationally focusing on critical moments in the arbitration process in key sites; complementary data derived from a discourse analytical identification of the significant communicative characteristics of such critical moments, and corroboration of such characteristics by sampled interactions of arbitration proceedings.

from: Project website

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