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Complex arbitration : the limitations of a neo-liberal institution


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Authors

Hafez, Karim Saleh 

Description

This dissertation deals with the situation in which an arbitration user neglects to create a procedural setup in which his related substantive rights and obligations under one or more contracts could be settled consistently- then discovers that the law will not mitigate his improvidence. Much has been written on how it might be possible to ensure inter-award harmony in such circumstances. And common wisdom has it that this is doable either by contract or not at all. This dissertation may have originated in the (now apparently naive) belief that the thing simply had to be done, regardless of what the parties did or neglected to do. But as study of the subject progressed, the focus of enquiry shifted to a puzzling feature of the literature on the subject. On the one hand, writers agree that the usual position of the arbitration clause among the tail-end boilerplate provisions in a contract very nearly represents its importance to the parties, who, accordingly, rarely give its detail more than cursory attention. On the other hand, writers- sometimes the same ones-after sustained good-faith attempts at finding an extra-contractual solution to the problem of complex arbitrations, declare that respect for private will-the selfsame will they moments earlier had conceded was purely formal- put paid to their efforts. This disjunction between premise and conclusion, between legal logic and social reality, seemed to have gone largely unobserved. No-one, it seems, paused to consider the curious circumstance of a counted actual proposition party control of procedural design in arbitration- could preclude solving a problem that all agree calls for a solution. Conceiving of complex arbitration as a practical field of enquiry devoid of theoretical interest has arguably left the anomaly unexamined. This dissertation presents a threefold argument. First, nothing indeed more than impedect palliatives is possible before the problem of inter-award conflict. Second, contrary to much writing on the subject, neither fmmal argument nor technical considerations alone could explain why that is so. Third, to the question what explains arbitration's inability to secure a social objective We inter-award harmony, this dissertation points to what it claims are arbitration's neo-liberal commitments.

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Qualification

Doctor of Philosophy (PhD)

Awarding Institution

University of Cambridge

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