Joshua Karton
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199658008
- eISBN:
- 9780191757914
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199658008.003.0002
- Subject:
- Law, Private International Law
This chapter provides some background to the cultural theory of international arbitral decision-making presented in the following two chapters. It sets out a definition of ‘culture’ as the term is ...
More
This chapter provides some background to the cultural theory of international arbitral decision-making presented in the following two chapters. It sets out a definition of ‘culture’ as the term is used in this book, explains why it is important to study international arbitration culture, and describes the methodology used here to generate the cultural theory of international arbitral decision-making: a sociological approach based on the grounded theory method.Less
This chapter provides some background to the cultural theory of international arbitral decision-making presented in the following two chapters. It sets out a definition of ‘culture’ as the term is used in this book, explains why it is important to study international arbitration culture, and describes the methodology used here to generate the cultural theory of international arbitral decision-making: a sociological approach based on the grounded theory method.
Joshua D H Karton
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199658008
- eISBN:
- 9780191757914
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199658008.001.0001
- Subject:
- Law, Private International Law
This study proposes a theory of international arbitration culture, tests this theory against real-world outcomes, and uses it to make predictions about the contract law principles that international ...
More
This study proposes a theory of international arbitration culture, tests this theory against real-world outcomes, and uses it to make predictions about the contract law principles that international arbitrators are likely to favour. Drawing on interviews with prestigious practitioners from a range of jurisdictions, as well as published arbitral awards, the writings of international arbitrators, and available statistical data on international arbitration, it presents a comparative analysis of arbitral and judicial responses to contract law issues. Part I develops a theory of arbitral decision-making as influenced by a legal culture specific to the international commercial arbitration community. It identifies the specific social norms that make up that culture and considers how these norms might affect arbitrators’ decision-making on matters of substantive contract law. Part II tests the explanatory power of the theory developed in Part I by applying it to published decisions of international commercial arbitrators on two discrete areas of contract law: suspension of performance in response to non-performance and the interpretation of contracts. These case studies demonstrate that arbitrators and judges are likely to take divergent approaches, even when they are applying the same substantive laws. This divergence is explicable on the basis of international arbitration’s unique culture. Finally, the cultural theory of international arbitral decision-making is applied to make predictions about the ways that contract law is likely to evolve through the decisions of international arbitratorsLess
This study proposes a theory of international arbitration culture, tests this theory against real-world outcomes, and uses it to make predictions about the contract law principles that international arbitrators are likely to favour. Drawing on interviews with prestigious practitioners from a range of jurisdictions, as well as published arbitral awards, the writings of international arbitrators, and available statistical data on international arbitration, it presents a comparative analysis of arbitral and judicial responses to contract law issues. Part I develops a theory of arbitral decision-making as influenced by a legal culture specific to the international commercial arbitration community. It identifies the specific social norms that make up that culture and considers how these norms might affect arbitrators’ decision-making on matters of substantive contract law. Part II tests the explanatory power of the theory developed in Part I by applying it to published decisions of international commercial arbitrators on two discrete areas of contract law: suspension of performance in response to non-performance and the interpretation of contracts. These case studies demonstrate that arbitrators and judges are likely to take divergent approaches, even when they are applying the same substantive laws. This divergence is explicable on the basis of international arbitration’s unique culture. Finally, the cultural theory of international arbitral decision-making is applied to make predictions about the ways that contract law is likely to evolve through the decisions of international arbitrators
Joshua Karton
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199658008
- eISBN:
- 9780191757914
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199658008.003.0001
- Subject:
- Law, Private International Law
This introductory chapter sets out the book’s purpose, which is to explore two discrete subjects whose relationship is acknowledged but often underappreciated: contract law and international ...
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This introductory chapter sets out the book’s purpose, which is to explore two discrete subjects whose relationship is acknowledged but often underappreciated: contract law and international commercial arbitration. Most commentators assume that when international commercial arbitrators apply national contract laws, they do so in fundamentally the same manner as national court judges of the jurisdictions whose laws are being applied. This book challenges that assumption. It contends that a legal culture specific to the international commercial arbitration community may lead arbitrators to decide issues governed by national contract laws differently from the way that national courts do. Moreover, they do so in ways that are predictable based on various aspects of international arbitration culture. The chapter also discusses the harmonization or unification of commercial law and describes the methodology and structure of the present volume.Less
This introductory chapter sets out the book’s purpose, which is to explore two discrete subjects whose relationship is acknowledged but often underappreciated: contract law and international commercial arbitration. Most commentators assume that when international commercial arbitrators apply national contract laws, they do so in fundamentally the same manner as national court judges of the jurisdictions whose laws are being applied. This book challenges that assumption. It contends that a legal culture specific to the international commercial arbitration community may lead arbitrators to decide issues governed by national contract laws differently from the way that national courts do. Moreover, they do so in ways that are predictable based on various aspects of international arbitration culture. The chapter also discusses the harmonization or unification of commercial law and describes the methodology and structure of the present volume.
Joshua Karton
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199658008
- eISBN:
- 9780191757914
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199658008.003.0008
- Subject:
- Law, Private International Law
This chapter discusses the implications of international commercial arbitration culture for the future of contract law. In particular, it identifies the substantive law doctrines that arbitrators are ...
More
This chapter discusses the implications of international commercial arbitration culture for the future of contract law. In particular, it identifies the substantive law doctrines that arbitrators are likely to prefer and predicts the directions in which international commercial law is likely to evolve. Without a sufficient sample of international arbitral decisions on substantive law matters, definitive predictions of how arbitrators will decide such issues are impossible. However, a sociological analysis of international commercial arbitration culture makes possible more accurate predictions than could otherwise be made.Less
This chapter discusses the implications of international commercial arbitration culture for the future of contract law. In particular, it identifies the substantive law doctrines that arbitrators are likely to prefer and predicts the directions in which international commercial law is likely to evolve. Without a sufficient sample of international arbitral decisions on substantive law matters, definitive predictions of how arbitrators will decide such issues are impossible. However, a sociological analysis of international commercial arbitration culture makes possible more accurate predictions than could otherwise be made.
