The Culture of International Arbitration and the Evolution of Contract 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 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 arbitrations 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.1. INTRODUCTION ; I. Background ; II. Methodology and Structure ; PART 1: A CULTURAL THEORY OF INTERNATIONAL ARBITRAL DECISION-MAKING ; 2. STUDYING INTERNATIONAL ARBITRAL CULTURE ; I. Introduction ; II. The Nature and Importance of Culture ; III. The Current State of International Arbitral Culture ; IV. Methodology ; V. Conclusion ; 3. NORMS ARISING FROM THE INSTITUTIONAL STRUCTURE OF INTERNATIONAL COMMERCIAL ARBITRATION ; I. Introduction ; II. Sources of and Constraints on Arbitral Authority ; III. The Professional Context of Arbitration ; IV. International Commercial Arbitration as a Competitive Marketplace ; V. Conclusion ; 4. NORMS ARISING FROM THE VALUES SHARED BY INTERNATIONAL COMMERCIAL ARBITRATORS ; I. Introduction ; II. Party Autonomy ; III. The Service of Business ; IV. Neutrality ; V. Internationalism ; VI. Conclusion ; PART 2: INTERNATIONAL ARBITRATION CULTURE AND CONTRACT LAW ; 5. SUBSTANTIVE LAW DETERMINATIONS IN INTERNATIONAL COMMERCIAL ARBITRATION: THE LEGAL RULES ; I. Introduction ; II. Application of Different Rules of Law in International Arbitration and National Court Litigation ; III. Ascertainment of the Content of the Governing Law ; IV. Conclusion ; 6. CASE STUDY 1: SUSPENSION OF PERFORMANCE ; I. Introduction ; II. The Remedy of Suspension of Performance ; III. Suspension of Performance in Comparative Context ; IV. Suspension of Performance in International Commercial Arbitration ; V. Conclusion ; 7. CASE STUDY 2: THE INTERPRETATION OF CONTRACTS ; I. Introduction ; II. Contractual Interpretation in Comparative Context ; III. Contractual Interpretation in International Commercial Arbitration ; IV. Conclusion ; 8. THE FUTURE OF CONTRACT LAW