Cultural Factors and Language - Chapter 8 - International Arbitration Checklists - 3rd Edition
Originally from International Arbitration Checklists - 3rd Edition
Despite what many observers discern as an increasing trend toward standardization of the conduct of international arbitration, there are still many differences in the manner in which arbitrations are run. These differences are to a great extent cultural in origin, arising out of the varying legal traditions and professional experience of the parties, their lawyers and the arbitrators. Their effect is on a variety of matters, ranging from the nature and scope of the proceeding to the professional conduct of the lawyers and arbitrators. The ways in which disputes are resolved in arbitration may well be influenced by these cultural differences – as indeed may the outcomes of those disputes.
Arbitration has tended to adopt the cultural characteristics of the country it begins in – or, as is frequently the case, the cultural background of the important participants in the arbitration, especially the chairman. Thus, in English arbitration there were, at least until the late 1990s, pleadings, disclosure of documents, exchange of witness evidence, and lengthy evidentiary hearings in exactly the same format as in English High Court litigation. Even today, an arbitration overseen by a Continental European chairman will, unless the parties or other arbitrators take steps to counteract this tendency, likely minimize the role of discovery and oral hearings.
Thus, paying attention to cultural differences is an important first step that should be taken by parties, counsel and arbitrators in thinking through a strategy for the conduct of an arbitration proceeding. This strategic thinking should take into account the ways in which, when the arbitrators, parties and their advisers come from different cultural backgrounds, the process ultimately adopted will partake of various cultural elements. In recent years, there has been a certain blending of these cultural influences, with the result that, on the one hand, the extremes of full discovery derived from UK/US culture are less often seen; and, on the other hand, the extremely short hearings that are characteristic of civil law systems are not so prevalent as they once were.