Culture of international arbitration and the evolution of contract law
Karton, Joshua David Heller
University of Cambridge
Faculty of Law
Doctor of Philosophy (PhD)
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Karton, J. D. H. (2011). Culture of international arbitration and the evolution of contract law (Doctoral thesis). https://doi.org/10.17863/CAM.16180
This thesis has been published as a book - Joshua Karton, The Culture of International Arbitration and the Evolution of Contract Law (OUP 2013) https://global.oup.com/academic/product/the-culture-of-international-arbitration-and-the-evolution-of-contract-law-9780199658008 This thesis is not available on this repository until the author agrees to make it public. The print copy is available for consultation in the Cambridge University Library's Manuscript reading room. Admission details are at http://www.lib.cam.ac.uk/deptserv/manuscripts/Admission.html. Alternatively it is possible to purchase a copy for private research as a PDF file. Personal applications should use the form at http://www.lib.cam.ac.uk/collections/departments/digital-content-unit/ordering-images.
International commercial arbitration ('ICA') is typically characterised as a procedural alternative to litigation in national courts. The great majority of scholarly literature on ICA relates to its procedure, as opposed to substance. This is not surprising since, in ICA, the governing substantive law is usually the national law of some state. One might therefore expect that there would be no difference between the decisions of arbitrators and judges on matters governed by substantive law. However, this intuition remains untested. ICA exists outside the legal system of any state and is specifically adapted for the resolution of international commercial disputes. The decisions of international arbitrators are fertile ground for the growth of international (i.e., transnational) commercial law. A better understanding of arbitrators' decision making will therefore shed light on how international commercial law is likely to evolve. Such understanding would also enable both consumers and providers of arbitration services to make better-informed decisions. International arbitrators' decisions are not susceptible to traditional legal analysis because only a tiny, non-representative sample of arbitral awards is published. The researcher simply lacks access to the necessary data. For the same reason, quantitative statistical studies of arbitrators' decisions are unlikely to yield useful insights. This thesis adopts a sociological approach. It identifies social norms that constitute an incipient culture of ICA and assesses the effects of these norms on arbitrators' decisions on the merits. Part I consists of two case studies that focus on specific areas of contract law. These case studies, which employ standard comparative law methodologies, provide evidence that the outcomes reached in ICA do diverge from those reached in national court litigation, even when arbitrators and judges purport to apply the same substantive laws. Part II employs the sociological methodology of 'grounded theory' to explain this divergence. It analyses the writings of arbitrators, counsel and commentators in order to describe two classes of social norms: those arising from the institutional structure of ICA and those arising from the values shared by international commercial arbitrators. The thesis concludes by predicting, in general terms, the effects of these social norms on arbitrators' decisions on the merits. It also suggests the specific contract law doctrines that international arbitrators will tend to prefer. These doctrines represent a likely future of international commercial law.
This record's DOI: https://doi.org/10.17863/CAM.16180