International Arbitration as Comparative Law in Action

34 Pages Posted: 3 Aug 2020

See all articles by Joshua Karton

Joshua Karton

Queen's University Faculty of Law; National Taiwan University - College of Law

Date Written: July 1, 2020

Abstract

The idea of “comparative law in action” seems nonsensical given the sterile and academic reputation of comparative law as a discipline. This Article argues that comparative law in action does not merely exist, it thrives in the field of international commercial arbitration (“ICA”). Comparative law methods pervade every stage of an international arbitration and are indispensable to ICA practice.

For many aspects of international arbitral proceedings, multiple laws conceivably apply. With no default options, the parties must make numerous choices: there is “too much law.” For other aspects of ICA, there is “too little law”: no applicable body of law provides any legal rule binding the parties or the arbitral tribunal, which must instead determine or develop the governing legal regime anew for each arbitration. In both situations—too much law and too little—comparative law methods are essential. Moreover, even if arbitrators and counsel were not constrained to think comparatively, the professional context within which they work would ensure that comparativism remains central to ICA practice.

The Article concludes by considering the implications of international arbitration as comparative law in action, for comparative law as a discipline and for the development of transnational law in the Twenty–First Century.

Keywords: international arbitration, comparative law, socio-legal studies

Suggested Citation

Karton, Joshua, International Arbitration as Comparative Law in Action (July 1, 2020). Journal of Dispute Resolution, Vol. 2020, No. 2, 2020, Available at SSRN: https://ssrn.com/abstract=3654734

Joshua Karton (Contact Author)

Queen's University Faculty of Law ( email )

Macdonald Hall
128 Union St.
Kingston, Ontario K7L3N6
Canada

National Taiwan University - College of Law ( email )

No.1, Sec.4, Roosevelt Road
Taipei, 10617, 10617
Taiwan

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