Legal Authorities and Comparative Law in International Commercial Arbitration: Best Practices versus Empirically Determined Actual Practices
1 Ius Comparatum __ (2020 Forthcoming)
43 Pages Posted: 13 Sep 2019
Date Written: September 12, 2019
For years, comparative law has been considered central to international arbitration, particularly with respect to procedural issues. Not only have inter-governmental organizations like the United Nations Commission on International Trade Law supported the view that judges and advocates should rely on international consensus when interpreting international instruments like the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the UNCITRAL Model Law on International Commercial Arbitration, but advocates have traditionally been encouraged to demonstrate the propriety of certain procedural decisions by presenting judges and arbitral tribunals with comparative data culled from specialist reporters and commentary.
Although comparative analysis is generally considered a best practice in international commercial arbitration, questions arise as to whether and to what extent it constitutes an actual practice. This Article presents and analyses empirical information concerning the use of legal authorities and comparative law by judges and arbitrators, relying on data generated by a recent large-scale international survey on legal reasoning in commercial disputes. The Article also provides a wealth of practical information to judges, arbitrators, advocates and scholars seeking to improve the way that they conduct comparative legal research in international commercial arbitration. In so doing, this analysis aids understanding and development of this increasingly important area of law.
Keywords: international commercial arbitration, comparative law, international law, procedural law, empirical research, dispute resolution, commercial law, judges
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