'Glocalization' of International Arbitration—Rethinking Tradition: Modernity and East-West Binaries Through Examples of China and Japan

University of Pennsylvania East Asia Law Review, Vol. 11, Issue 2, (2016), pp. 244-292

50 Pages Posted: 9 Oct 2015 Last revised: 1 Nov 2017

See all articles by Kun Fan

Kun Fan

Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre

Date Written: October 8, 2015

Abstract

In the main streams of comparative law, general legal theory and the study of globalization, there is a general lack of consideration of non-Western legal experience. Such general omission is deeply rooted in the static binaries such as ‘tradition-modernity’ and ‘East-West’, which make up ‘legal Orientalist’ discourses. This article fills the gap by studying the case China and Japan, and analyzing the role of their tradition on the contemporary development of international arbitration. Through the specific example of international commercial arbitration, it illustrates that even in specialism where ‘national identity’ seems relatively weak, and thus the effects of globalization is particularly strong, local culture remains to play a significant role.

Rejecting the cultural homogenization thesis, this article puts forward the theory of ‘glocalization of arbitration’, which describes the entanglement process between ‘global standards’ and ‘local norms’ in international arbitration. The concept of glocalization is used to analyse the ways in which social actors construct meanings, identities and institutional forms within the sociological context of globalization, conceived in multidimensional terms. On the one hand, global norms are localized with adaptations to accord more closely with local cultures — ‘localized globalism’; on the other hand, through interactions with different cultures, local practices may produce shared norms and expectations, which will in turn shape behaviors, and eventually form a common culture — ‘globalized localism’. It challenges the conventional world view of tradition-modernity, West and non-West and proposes a different way to look at modernity, or in fact a ‘postmodern’ framework, which can be characterized as an age of ‘glocalization’.

After the Introduction, Part II maps the conceptual framework of culture and defines the two notions of legal culture. Part III takes a microscopic approach to illustrate localized globalism by looking at the local cultures in China and Japan, and analyzing the cultural influence on their respective contemporary arbitration regimes. Part IV attempts to foresee whether the cross-national interactions in the arbitration community will lead to a convergence of the participants’ own national legal cultures, and eventually lead to the emergence of a common international arbitration culture, crossing national and geographical boundaries — the ‘diffusion of cultures’ and ‘globalized localism’. Part V concludes with a few observations on the limits of this study and possible areas for future research.

Keywords: Glocalization, International Arbitration, China, Japan, Legal Culture

JEL Classification: K10, K40, K49, K20, K29

Suggested Citation

Fan, Kun, 'Glocalization' of International Arbitration—Rethinking Tradition: Modernity and East-West Binaries Through Examples of China and Japan (October 8, 2015). University of Pennsylvania East Asia Law Review, Vol. 11, Issue 2, (2016), pp. 244-292, Available at SSRN: https://ssrn.com/abstract=2671627

Kun Fan (Contact Author)

Herbert Smith Freehills China International Business and Economic Law (CIBEL) Centre ( email )

UNSW Law
Sydney, NSW 2052
Australia

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