Originally from: Lowenfeld on International Arbitration

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The Meeting of Different Legal Traditions

Andreas F. Lowenfeld

2. THE TWO-WAY MIRROR: INTERNATIONAL
ARBITRATION AS COMPARATIVE PROCEDURE

      Arbitration of international commercial disputes means different
things to different observers or participants. Some view it as a speedy
and inexpensive alternative to lengthy litigation. Others view
arbitration as a way to deflect intense antagonism, something like
mediation or counseling, where the sharp edges of law and fact are
smoothed over in a resolution that all concerned can accept. Still
others view arbitration just like litigation, except that the jurisdictional
obstacles have been avoided. My own perception — having sat in my
professor’s (i.e., observer’s) chair even as I was a participant in
numerous international arbitrations — is different from each of these
perceptions. I see international arbitration — especially the typical
arbitration with two party-appointed arbitrators from different states
and a chairman from a third state — on the one hand as an exercise in
comparative procedure, and on the other hand as source and evidence
of a norm of international conduct which may be different from
(though similar to) the law of any given nation-state.
      Most serious writing about arbitration follows the “law review
format,” which I take it means never say anything without source,
produce a great many footnotes, and cite a maximum of reported
appellate decisions. It is certainly possible to do this in writing about
arbitration, but I believe only at considerable cost. Discussing
arbitration through cases in the law reports has the same failing, I
submit, as most of American administrative law, which does not
reveal much about how administrative agencies function but tells a
great deal about judicial control of administrative action — a quite
different subject. Similarly, one may write in law review format
about actions to compel or enjoin arbitration, to stay litigation
pending arbitration, and to confirm, enforce, or set aside arbitral
awards. All of these topics are interesting and important; none,
however, tells very much about arbitration itself. This article
undertakes to explore the process of international arbitration — the
main event, as it were —rather than what comes before or after,
which may well take place in court but if all goes well should not take
place at all.
      Writing about the main event has certain drawbacks. Arbitration
is — almost by definition — nearly always confidential, and even
when awards are published, they tend to be redacted in such a way
that the process and method on which I want here to concentrate are
very difficult to discern. The secondary literature tends to be of the
“how to do it” character — useful tips on drafting clauses, choosing
a forum, or presenting cases — but not reflective. Thus one is left
largely to his own resources — in my case about a decade of
experience, primarily as arbitrator, occasionally as adviser. This
article is not “social science,” in the sense of being founded on a
statistical sample; nor is it “law review format,” in the sense of
permitting “cite & substance” control. It is, however, an attempt to
subject international arbitration to academic inquiry, by which,
needless to say, I do not mean what journalists mean by that term. I
want to try to put on paper some of what I have learned as arbitrator,
not just about arbitration, but also about law overall.