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

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