The Morality of Conciliation: An Empirical Examination of Arbitrator 'Role Moralities' in East Asia and the West

30 Pages Posted: 16 Mar 2010 Last revised: 28 Oct 2019

See all articles by Shahla F. Ali

Shahla F. Ali

The University of Hong Kong - Faculty of Law

Date Written: March 12, 2010

Abstract

While arbitration is practiced in nearly every region of the world, underlying assumptions of what it means to arbitrate a dispute or to be a “good arbitrator” are largely shaped by notions of role-perception and virtue. Such long standing conceptions tend to be deeply rooted and in turn have a significant influence on contemporary practice. Drawing on the concept of role morality, or the internalized expectations that guide an arbitrator’s actions and constitute a form of implicit law, this paper presents a cross cultural examination of how international arbitrators view their role in actively promoting settlement in the context of international arbitration proceedings. The result of both in-depth interviews as well as a 115 person survey indicate that on the whole, international guidelines such as the UNCITRAL Model Law on International Commercial Arbitration and the IBA Rules of Ethics for International Arbitrators have contributed to the harmonization of contemporary perspectives regarding the appropriateness of particular settlement interventions, such as suggesting settlement negotiations to disputing parties and engaging in settlement negotiations at the request of disputing parties. At the same time, historic and philosophical emphasis on the virtue of reconciliation is reflected in a slightly higher degree of involvement and effectiveness in assisting parties to reach settlement agreements in East Asia. Because of the flexible structure of international arbitration based on a Model Law system which allows countries to opt in or out of particular provisions, procedural variation pertaining to differing preferences for conciliatory or adjudicatory approaches to arbitration can coexist with a relatively high level of substantive legal uniformity across regions.

Keywords: International Arbitration, Dispute Resolution, Role Morality, Mediation, Conciliation, Settlement, East Asia, Empirical Legal Studies, Law and Society

Suggested Citation

Ali, Shahla F., The Morality of Conciliation: An Empirical Examination of Arbitrator 'Role Moralities' in East Asia and the West (March 12, 2010). Harvard Negotiation Law Review, Vol. 16, Spring 2011. Available at SSRN: https://ssrn.com/abstract=1569340

Shahla F. Ali (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Chung Yu Tung Tower (Law), Centennial Campus
Pokfulam Road
Hong Kong
(852) 3917 2931 (Phone)
(852) 2559-3543 (Fax)

HOME PAGE: http://www.hku.hk/law/faculty/staff/ali_shahla.html

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