Originally from American Review of International Arbitration - ARIA

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Codes, laws and guidelines governing international commercial arbitration developed by such organizations as the International Court of Arbitration (“ICA”), the International Bar Association (“IBA”) and the International Chamber of Commerce (“ICC”) have been drafted against the background of common-law and civil-law values. In balancing these two great legal traditions, it was assumed that together they represent a composite legal tradition governing international commercial arbitration. The result of that assumption was decades of fine work enshrining international arbitration doctrines, principles, and rules of law and procedures that blend these two important legal traditions. From the doctrine of freedom of contract to specific rules of evidence and procedures that govern arbitral hearings, the international arbitration community has sought to maintain the respected legal traditions that lawyer-arbitrators and counsel find familiar and comfortable.

More recent concerns, partly expressed by William K. Slate II, President of the American Arbitration Association, have begun to raise such questions as: How pervasive are the common and civil-law traditions?  Are they sufficiently uniform in nature and operation to justify their dominant status in formulating codes, laws and rules governing international commercial arbitration? And has international commercial arbitration become unduly reliant upon both the common and civil-law traditions at the expense of other legal traditions that operate against the background of different and changing legal cultures? 

Part I of this article asks: What is a legal tradition and how should it be distinguished from a legal culture in relation to international commercial arbitration?  Part II reflects on the influence of legal culture on international commercial arbitration.  Parts III, IV and V investigate the common and civil legal traditions in relation to national, regional and international commercial arbitration.  Part VI evaluates the public traditions that surround international commercial arbitration.  Part VII considers whether change in the traditions of international commercial arbitration represents culture change or culture shock.  Part VIII emphasizes the value of building an inclusive international arbitration tradition.  Part IX suggests ways in which international commercial arbitration can accommodate diffuse and changing local, regional and global influences upon it.