Comparative Analysis as an Autonomization Strategy in International Commercial Arbitration
International Journal for the Semiotics of Law, Vol. 3, No. 1, 2018, Forthcoming
iCourts Working Paper Series No. 48
23 Pages Posted: 12 Mar 2016 Last revised: 19 Feb 2018
Date Written: March 10, 2016
The article explores the unique character of international commercial arbitration as a globalized phenomenon, where universalizing and harmonizing effects have largely been achieved by private means and spontaneous expansion, outside the States’ direct intervention and control. The evolution of arbitration in recent decades from an alternative to the core mechanism of deciding cross-border commercial controversies is considered. Privatization of this area of dispute resolution is examined in the context of its growing autonomization, marked — as observed by Emmanuel Gaillard — by notable changes in its theoretical representations and narratives.
This specific conceptual, institutional, and procedural framework of commercial arbitration reflects the demands of decision-making exercised in a legally, linguistically, and culturally diversified environment. Interpretation and application of law in arbitral cases requires skillful navigation between the rules of domestic, international and transnational origin, performed not only on the level of substantive norms, but also on those involving conflict of laws and procedure. As a consequence, comparative analysis plays a critical and complex role in arbitral decision-making, reaching beyond the mere demands of rendition of relevant provisions, and has been defined sensu largo as a ‘comparative mindset’, characteristic to international commercial arbitration. The article examines this phenomenon and its mechanics, challenges for legal professions and the effect of transnationalization of relevant domestic rules. It also explains the role of comparative analysis as an important instrument, used strategically in the processes of autonomization of commercial arbitration.
Keywords: arbitration, legal interpretation, comparative analysis, commercial dispute resolution
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