Arbitration in Asia - Chapter 1 - International Commercial Arbitration in Asia - 3rd Edition
Shahla Ali is Assistant Professor of Law and Deputy Director, LLM in Arbitration and Dispute Resolution, University of Hong Kong. Her teaching and research focus on arbitration and dispute resolution, law and development in East Asia and commercial contracts. She is the author of "Resolving Disputes in the Asia Pacific Region: International Arbitration and Mediation in East Asia and the West" (Routledge, 2010). Prior to joining the faculty of law, she worked at the law firm of Baker & McKenzie in its international trade/compliance group. She has consulted with USAID and IFC/World Bank on issues pertaining to access to justice and resource dispute resolution and has provided negotiation training for UN staff. She currently serves on the IBA Drafting Committee for Investor-State Mediation Rules. Dr. Ali received her J.D. and Ph.D from the University of California at Berkeley and her B.A. from Stanford University. She is a member of the State Bar of California, an accredited mediator (HKMC) and a public arbitrator (FINRA).
Thomas Ginsburg is the Leo Spitz Professor of International Law and the Ludwig and Hilda Wolfe Research Scholar at the University of Chicago Law School, as well as a Research Professor at the American Bar Foundation. He holds B.A., J.D. and Ph.D. degrees from the University of California at Berkeley. He has written widely on comparative constitutional law, international law, arbitration, the legal systems of East Asia. Before entering law teaching, he served as a legal advisor at the Iran-U.S. Claims Tribunal, The Hague, Netherlands, and he has consulted with numerous international development agencies and governments on legal and constitutional reform.
This chapter presents a cross cultural examination of how international arbitrators in East Asian and Western countries view the goal of settlement in international arbitration. The result of a 115 person survey and 64 follow up interviews shed light on the underlying cultural attitudes and approaches to settlement in international arbitration as practiced in diverse regions. The findings indicate that arbitration practitioner’s perceptions of the frequency of compromise decision in international arbitration demonstrate a high degree of convergence across regions. At the same time, cultural and socio-economic distinctions are reflected in varying arbitrator perceptions regarding the arbitrators’ role in settlement, whether settlement is regarded as a goal in arbitration and the types of efforts made pre-arbitration to settle disputes. In particular, arbitrators working in the East Asian region generally regard the goal of facilitating voluntary settlement in the context of international arbitration with greater importance and make greater efforts pre-arbitration to settle disputes as compared with counterparts in the West. While aggregate statistical surveys are inherently limited in their ability to tease out intraregional diversity, the aim of this book is to provide an account of such diversity in the chapters that follow.