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Field Research - Chapter 6 - International Arbitration Ex Aequo et Bono/Amiable Composition

Page Count: 
36 pages
Published: 
November, 2016
Jurisdictions: 
International
Tags: 
Ex Aequo Et Bono,
Research

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6.1       THE NEED FOR EMPIRICAL RESEARCH IN ARBITRATION

Despite a lengthy tradition of empirical research in arbitration studies, this form of research and data collection remains largely out of favor with scholars.

As has been observed,[1] we derive a large part of the body of information on international arbitration from anecdotes by eminent practitioners sharing such stories with lecture audiences and article readers.  Although such a body of information bears an undeniable value, it cannot claim to represent accurately or comprehensively the “state of practice” in the practice of international arbitration. At least, it cannot be considered an accurate portrait without further empirical support.

Empirical studies on arbitration have existed at least since the 1940s.[2]  One of the best known examples is the article by Soia Mentschikoff, published in 1961, on arbitration at the American Arbitration Association.[3] Beyond Mentschikoff, we can refer to a number of additional efforts.[4]  Some arbitration institutions also started publishing statistical data facilitating this line of research.

 

[1]   Coe Jr., Jack J. From Anecdote to Data: Reflections on the Global Center’s Barcelona Meeting (note n. 1). Journal of International Arbitration, v. 20, n. 1, p. 11 and following., Feb. 2003.

[2]   Id., p. 11.

[3]   Mentschikoff, Soia. Commercial Arbitration. Columbia Law Review, n. 61, pg. 846 and following.

[4]   See the research references in Coe ,JACK, note 704.; and Drahozal, Cristopher R. Of Rabbits and Rhinoceri: a Survey of Empiric Research in International Commercial Arbitration. Journal of International Arbitration, v. 20, n. 1, pg. 22 and ss., Feb. 2003. The book Dealing in virtue: international commercial arbitration and the construction of a transnational legal order, by Dezalay and Garth (Chicago: The University of Chicago Press, 1996) is another example of empirical research in international arbitration. The work developed by the ICC Task Force on Arbitration Ex Aequo et Bono is another remarkable example of empirical research in the specific domain of this work. Unsurprisingly, it will be a major reference on arbitration ex aequo et bono in the future. The recent article written by Laurence Kiffer (Amiable Composition and ICC Arbitration, ICC International Court of Arbitration Bulletin, v. 18, n. 1, pg. 51 and ss., 2007) is an example of research on case law in the field of arbitration ex aequo et bono. A good number of empirical research has focused on arbitral awards and court decisions. Fewer refer to field research. Lately, law and auditing firms have been promoting a series of surveys of practitioners, which the author welcomes.