A Case of Motivated Cultural Cognition: China's Normative Arbitration of International Business Disputes
The International Lawyer, Vol. 52, Forthcoming, 2019
48 Pages Posted: 27 Sep 2018
Date Written: August 29, 2018
The centuries-old conception of judges and arbitrators as highly predictable and objective is being dismantled. In its place, a much more textured, complicated, and challenging understanding of legal decision-making is being constructed. New research on “Motivated Cognition” demonstrates that judges and arbitrators are more human than mechanical, pouring themselves – and the cultural and institutional contexts within which they act – into their decision making. This article extends the emerging model of Motivated Cultural Cognition, a form of Motivated Cognition, to the global stage, investigating arbitration of business disputes between two world-powers: United States and China. Through a first-of-its-kind empirical study of Chinese arbitration of 1,000 international business disputes, it uncovers a fascinating finding. Using particular decision rules that are consistent with China’s core cultural values, Chinese arbitrators unwittingly reach outcomes that favor Chinese and other culturally similar parties while disfavoring parties from culturally dissonant countries – most notably, the United States. Given that disputes between business parties with vastly different cultures are now the norm, this article provides important insights on the ever-evolving blueprint of cross-cultural justice.
Keywords: Cultural Cognition, International Arbitration, Foreign Investment in China, Chinese Arbitration, Empirical Study, Chinese Justice, CIETAC, Rule of Law, Dispute Resolution, Contracts, Legal Reform, Decision-Making, China Trade, Foreign Trade
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