Clash of Cultures: Epistemic Communities, Negotiation Theory and International Lawmaking at the United Nations Commission on International Trade Law (UNCITRAL)

Abstract

This Article considers how epistemic communities affect the international lawmaking process by applying a negotiation-analytic perspective to various theories regarding international relations and applying those principles to interstate deliberations at the United Nations Commission on International Trade Law (UNCITRAL) regarding a proposed new convention in the area of international dispute resolution. In so doing, this Article hopes to help various participants, including state delegates, inter-governmental organizations (IGOs) and non-governmental organizations (NGOs), understand the dynamics at issue in the current treaty deliberations and improve negotiation techniques and outcomes. In particular, the Article considers how disparities between different epistemic communities involved in the UNCITRAL process could affect the shape and future of the proposed convention and whether the clash of cultures will prove fatal to the development of a new international instrument in this area of law.

The analysis is of critical importance to the international dispute resolution community, since many arbitral specialists see the proposed convention as a threat to the hegemony of international commercial and investment arbitration. However, the discussion has wide relevance to the international community more generally, since the analysis provides useful insights into the international lawmaking process and demonstrates the difficulties experienced by newly formed epistemic communities seeking to expand their sphere of influence in international policymaking. As a result, the current Article is of interest to experts in international law, international relations and international dispute resolution.

Keywords: international law, international relations, foreign law, legal theory, negotiation theory, jurisprudence, politics, policymaking, epistemic communities