"LEGAL TRADITIONS" AND INTERNATIONAL COMMERCIAL ARBITRATION

Leon E. Trakman, University of New South Wales

Abstract

“LEGAL TRADITIONS” AND INTERNATIONAL COMMERCIAL ARBITRATION

The Common and Civil Law systems have guided the enactment of major codes, laws and guidelines that regulate international commercial arbitration. From the doctrine of freedom of contract to the procedural rules governing arbitration hearings, international arbitration has built its legal culture around these two traditions.

Recent concerns expressed by luminaries like William Slate, President of the American Arbitration Association, challenge the pervasive influence of these traditions over international commercial arbitration. Is the American tradition of law practice too litigious to serve as a viable model for international commercial arbitration? Is arbitration unduly preoccupied with the Common and Civil Law traditions at the expense of other legal traditions?

This article gauges the extent to which international commercial arbitration has excluded emerging legal traditions and proposes ways in which it can better accommodate them without losing its distinctiveness. Reflecting on a new world order, it considers significant shifts in global trade from multilateralism to bilateralism, the growing importance of developing countries in arbitration, and the pre-eminence of China in the new world order.

The final message is that, if international commercial arbitration is to remain relevant, it needs to embody a richer tapestry of cultures and legal traditions than it does at present. The article proposes a way forward.