Originally from:

Journal of American Arbitration (JAA) - Vol. 4, No. 1

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ARTICLES

International Commercial Online and Offline
Dispute Resolution: Addressing Primacism
and Universalism
By Benjamin G. Davis

In my recently completed research on U.S. minorities in
international commercial arbitration,3 I surveyed distinguished
international commercial arbitration practitioners from around the world
to try to find whether they had had any experience with U.S. minorities
in the principal roles played by actors in international commercial
arbitration (arbitrator, expert, and/or party counsel and to a lesser extent
in arbitral institutions or as judges). I thought it important to study this
question in international commercial arbitration because this form of
arbitration plays a key role in providing for the rule of law in the
transnational environment. International commercial arbitration is
associated with universalist principles: neutrality (for example, by
selection of a neutral nationality for a chair or sole arbitrator),
independence, due process, party autonomy, and arbitral discretion. It is
thought of as a mechanism that could be opened to all types of entities in
international commercial disputes coming from around the world. For
my survey, I was curious to see if U.S. minorities were playing some role
in this universalist enterprise.
The results of the survey suggested that, from an American
perspective, there is a color line in international commercial arbitration—
particularly in the overseas offices of U.S. law firms. The study led to a
suggestion of seven currents that the U.S. minority needs to manage to
become successful in this career (U.S. Based Minority Current, Overseas
Based U.S. Minority Current, Changing International Commercial
Arbitration Current, Cooptation Current, Human Capital Current,
Lifestyle Current, and Cultural Current).
In the research on the Cultural Current, I did stumble across a
curious phenomenon: in international commercial arbitration, which has
a universalist mission and principles as described above, there appeared
to be some who look to the primacy of a group (race for example) to
describe nationality and through that also the nature of the legal culture.
The letter that started me down this path of thought is reproduced here
and was received from one international commercial arbitration
practitioner:
Dear Mr. Davis,
Thank you for your communication by e-mail of February 28. I was