5th International Symposium on Genre Studies – SIGET

(Caxias Do Sul, Brazil, August, 11-14, 2009)

Interdiscursive colonization Interdiscursive colonization

of international commercial arbitration of international commercial arbitration

practice:practice:

©Vijay K BhatiaCity University of Hong Kong

HONG KONG

The work on this paper is supported by an RGC CERG grant from The Government of Hong Kong (Project No. CityU1051/06H) entitled International Arbitration Practice: A Discourse Analytical Study.

For details see Website: http://enweb.cityu.edu.hk/arbitrationpractice

practice:practice:

Accessibility of data in critical genre analysisAccessibility of data in critical genre analysis

ABSTRACT

Critical genre analysis, especially targeting specific professional practices, crucially depends on the

availability of discursive data from the professional practice under investigation, which is not always

easy to access. In this presentation, I would like focus on one such multidisciplinary international

initiative, in which I have been involved for the last several years with collaboration from more than

twenty research teams from as many countries.

International arbitration is regarded as an economical and effective alternative to litigation for

settling commercial disputes. However, over the years, arbitration is being increasingly ‘colonized’ by

litigation practices, threatening, not only the integrity of arbitration practice as alternative to

litigation, but also the very spirit of arbitration as a non legal practice, which offers a unique

opportunity for a critical genre analytical investigation of interdiscursive tensions across

arbitration-litigation practices.

By drawing on discourse data (narrative, documentary and interactional), it is possible to look at the

motivations for such interdiscursive processes and procedures. However, the so-called duty to strict

confidentiality observed and practiced in international arbitration practice makes it difficult to have

access to data from arbitration practice and thus to undertake such critical genre-based

interdisciplinary research.

This paper will focus on some of the important issues involved in this study of professional practice

and discuss implications arising from this code of confidentiality, and more importantly propose

alternatives to collection of data from arbitration practice.

Interdiscursivity

Professional Genres Professional Practices Professional Cultures

Appropriation of Generic Resources

Professional Genres Professional Practices Professional Cultures

Corporate Disclosure Documents

Colonization of Arbitration Practice

Marketing and Fundraising

Cultures

① Assumptions and issues in international commercial arbitration practice

② Confidentiality and inaccessibility of discursive data

ORGANISATION OF THE PRESENTATION

data

③ Researchers’ dilemma!!! And, alternatives to ‘on-stage’ and ‘off-stage’ performance

④ Complexities of ‘generic integrity’ and ‘interdiscursivity’ across professional genres

Speedy resolution of

Disputes

Speedy resolution of

DisputesEconomy of

costsEconomy of

costs

Limited interference from courts

Limited interference from courts

Privacy and confidentiality

Privacy and confidentiality

Enforcement of awards

Enforcement of awards

Arbitration as

alternative to litigation

to resolve Expertise of ArbitratorsExpertise of Arbitrators

Assistance from

Arbitration Centres

Assistance from

Arbitration CentresFreedom to

customize process

Freedom to customize

process

Flexibility of procedures

Flexibility of procedures

Party participation

Party participation

to resolve

commercial disputes

International commercial arbitration has its own doctrine to interact between

�the arbitration laws,

�the institutional rules of application, and

�the specific rules of the seat of arbitration.

The parties seek to resolve their dispute within these rules.

However, lawyers often follow familiar procedures of litigation to conduct arbitration.

Some even assume that arbitration is just another form of litigation.

ISSUES

Preference for legal experts as arbitrators.

� Increasing influence of litigation over arbitration

� Compromising the spirit of arbitration

This often results in

INCREASING MIXTURE OF DISCOURSES

from arbitration and litigation.

� No longer an alternative to litigation

PriceWaterhouseCoopers (2006) study of International arbitration:

Corporate attitudes and practices reveals:

A need for a wider pool of arbitrators, with specialization or

expertise in the subject matter of the dispute, in particular,

• Specialization in industry sector;• Specialization in industry sector;

• Regional or country experience;

• Cross-disciplinary expertise (e.g. technical or financial

background)

They believe that arbitrators with these skills save their corporations

time and money.

Although the 1996 Act gave arbitrators very considerable

power over the running of an arbitration and greater

confidence in their autonomy, my sense is that they are not

really producing radically new procedures more efficient

and prompt than hitherto. The English passive tradition

dies hard and self-interest is a dominant factor. The dies hard and self-interest is a dominant factor. The

practitioners dominate the arbitral processes in the same

way as they have dominated litigation, and to the same

end.

Arthur Marriott QC in his Clayton UTZ (University of Sydney) Lecture in 2005 entitled Litigate,

Arbitrate, Mediate – Frustrate? Breaking the Dispute Deadlock.

Hence there is a need for

an evidence-based investigation of

the extent to which arbitration practices are

influenced by litigation procedures and practices.

AN INTERNATIONAL PROJECT Funded by AN INTERNATIONAL PROJECT Funded by

Research Grants Council HKSAR under Competitive Earmarked Research GrantResearch Grants Council HKSAR under Competitive Earmarked Research Grant

International Commercial Arbitration Practice: A International Commercial Arbitration Practice: A

Discourse Analytical StudyDiscourse Analytical Study

An RGCAn RGC--CERG funded international project (9041191: CityU 1501/06H) entitledCERG funded international project (9041191: CityU 1501/06H) entitledInternational Commercial Arbitration Practice: A Discourse Analytical StudyInternational Commercial Arbitration Practice: A Discourse Analytical Study

Discourse Analytical StudyDiscourse Analytical Study

Our key objective

To investigate the ‘integrity’ of international arbitration practices to determine the extent to which these practices have been interdiscursively influenced by litigation practices.

In other words,

to investigate the extent to which legal expertise is crucial to effective arbitration practice.

Narratives of Narratives of experience experience

key practitionerskey practitioners

Narratives of Narratives of experience experience

key practitionerskey practitioners

InterInter--textual textual relationshipsrelationships

among discursive among discursive practicespractices

InterInter--textual textual relationshipsrelationships

among discursive among discursive practicespractices Multi-perspective

Analysis of the Discourses of and in

Multi-perspective Analysis of the

Discourses of and in

Analyses of Analyses of critical moments critical moments in the discourses in the discourses

of arbitration of arbitration practicespractices

Analyses of Analyses of critical moments critical moments in the discourses in the discourses

of arbitration of arbitration practicespractices

Discourses of and in Arbitration

(Bhatia, 2004)

Discourses of and in Arbitration

(Bhatia, 2004)

The researcher’s dilemma!!!The researcher’s dilemma!!!The researcher’s dilemma!!!The researcher’s dilemma!!!

NonNon--access to data from Arbitration Practiceaccess to data from Arbitration Practice

� Access to arbitration awards

� Access to the discourses of and in arbitration

� Privacy and confidentiality as a selling feature � Privacy and confidentiality as a selling feature

� However, the same strength of arbitration, has become a

major stumbling block for this kind of research.

The PriceWaterhouseCoopers (2006) study also reveals the following as the most important reasons for using international arbitration.

① Flexibility of procedure

② Enforceability of awards

③ Confidentiality to keep business practices, trade secrets, industrial processes private

④ Freedom to select arbitrators

Fortier observes that

… the principle [that a duty of confidentiality exists] —

at least, in the absolute form in which it is generally

understood by most parties — is more truism than truth .

Views on ‘confidentiality’ from within the profession

understood by most parties — is more truism than truth .

Fortier, Yves L., (1999): The Occasionally Unwarranted Assumption of Confidentiality, In 15 Arbitration International 131.

Similarly, Alexis Brown (2001:971) points out that

…a presumption of confidentiality—whether implied or explicit—

exists between the parties to an international commercial arbitration.

However, there is a disconnect between that presumption and the

frequent realities of disclosure and publicity…, the question of

confidentiality in international arbitral proceedings is far from confidentiality in international arbitral proceedings is far from

settled.

Alexis C. Brown, Presumption Meets Reality: An Exploration of the Confidentiality Obligation in International Commercial Arbitration, American Uniform International Law Review, (2001), 969-1025;.

Sir Bernard Rix, pointing out that publication of awards is to educate potential stakeholders, says

The more that arbitration awards are final and avoid any

visit to the courts, the more commercial parties have a real

and justifiable interest in being able to discover for

themselves how arbitration tribunals and individual themselves how arbitration tribunals and individual

arbitrators decide and perform. They should not be simply

in the hands of their legal advisers, who give them

anecdotal information.

Arbitration- The Journal of the Chartered Institute of Arbitrators, volume 72, Number 3, August 2006, page, 227

Catherine Rogers and Richard Cadwallader (2006) point out:

Arbitral decision making in the past occurred in a virtual black

box… and so there was no basis for comparison shopping.

(Though) the disclosures generally are made for reasons other than

to advance transparency, the information they provide inevitably

illuminates the inner workings of the international commercial

arbitration system.

(54 Kan. L. Rev. 1301 (2006) Secrecy and Transparency in Dispute Resolution: Transparency in International Commercial)

Trakman voices his concern for research purposes:

Exceptions to requirements of confidentiality may be

justified by the participants who are not parties to

arbitration…in the interest of research…

Trakman, Leone E. (2002): Confidentiality in International Commercial Arbitration, in Arbitration International, Vol. 18, No.1, (1-18)

ARGUMENTS AGAINST THE DUTY OF CONFIDENTIALITY

① Consistency in the resolution of arbitral awards

② Training of future arbitrators

③ Future of arbitration as alternative to litigation

DP1DP1

Alternatives to Actualities of Interaction

Critical Moments of Interaction

Critical Moments of Interaction

Critical Sites of Engagement

DP2DP2 DP3DP3

Critical Moments of InteractionDP Discursive Practice

NATURE OF INFORMATION REQUIRED FOR RESEARCH

Brown (2001) mentions eight elements of Arbitration:

� Fact of the Arbitration’

� Documents produced during Discovery & Evidence in the Arbitral Proceedings

� Witness Testimony

� Trade Secrets Revealed During the Proceedings

� Transcripts and Minutes of the Hearings

� Deliberations of the Tribunal; and � Deliberations of the Tribunal; and

� The Final Award.

However, for a discourse-based investigation of the ‘integrity’ of arbitration practice, only three of these elements are crucial:

Accounts of witness testimony,

Transcripts of the hearing, and

The final award.

ILLUSTRATIONILLUSTRATIONHCCT 33/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO. 33 OF 2004

____________BETWEENBETWEEN

KENWORTH ENGINEERING LTD Applicant

AND

NISHIMATSU CONSTRUCTION CO. LTD Respondent

Coram: Hon Reyes J in ChambersDate of Hearing: 25 May 2004Date of Judgment: 25 May 2004

ILLUSTRATIONILLUSTRATION

Let’s look at three extracts from the judgment:

1. A section of the letter written by the arbitrator

2. A section of the 8th Interim Award dated 19 April 2004 of Mr. James Findlay OBE QC ("the Arbitrator")

3. Section of the Judgment delivered by the Judge of the Court of First Instance, High Court, Hong Kong

I have given anxious consideration for your request for an oral hearing to reconsider

the timetable for this matter. You have in that letter [of 2 April 2004] given reasons

why you say there should be an oral hearing.

You say that it is reasonable to ask for such a hearing for any important matter, that it

would be convenient to deal with each step in the timetable at such a hearing and that

an oral hearing would enable me to clarify matters when I am in doubt. It may be

reasonable to ask and there may be some advantages in having a oral hearing, but I

have to consider whether the costs of and delay involved in such a hearing are factors

that outweigh these possible advantages. I do not consider the possible advantages are that outweigh these possible advantages. I do not consider the possible advantages are

sufficient. The matter is purely procedural with no substantive rights being affected. I

see no difficulty in fixing each step of the timetable if it is to be adjusted. And you

need not be concerned about me being in doubt. If I am, I will ask for clarification.

As I see the present position, any substantial delay now would put the scheduled dates

in jeopardy…., I am totally unconvinced that an oral hearing would be worth the delay

and cost, and that application is refused.

Section of the letter written by the Arbitrator rejecting oral hearing

The Respondent says that each document concerned is numbered in accordance

with the Respondent's own searchable database. The numbers are those given to

the documents at the time they were written. Each page also has a number given at

this time. The Claimant does not challenge this, but argues that this system is not

in accordance with my discovery order. If pages were to be renumbered, the

searchable database, which I would have thought very useful, would be rendered

purposeless. I am not saying that the Respondent disclosure is perfect, and it may purposeless. I am not saying that the Respondent disclosure is perfect, and it may

be, as the Claimant says, that some of the documents in List A at Tsuen Wan are

not as they should be. But I am not here concerned to see if the Respondent's

discovery is immaculate. There never was such a thing. I am concerned to judge

whether the Respondent's discovery was substantially in accordance with my

order. I think it was.

Section of the 8th Interim Award: dated 19 April 2004 by the Arbitrator"

In my view the Arbitrator cannot be faulted for his conclusion that there has been

substantial compliance. Nor do I see how further submission by the parties' legal

advisers could have significantly helped him to resolve the dispute, especially

given that there had already been extensive correspondence from the parties to him

on the pagination of the bundles (among other aspects). In light of the copious

material before him, it seems to me that the Arbitrator was entitled to come to the

conclusion that there had been substantial compliance by Nishimatsu and the

pagination and bundling of Nishimatsu's discovery was not a sufficient basis to pagination and bundling of Nishimatsu's discovery was not a sufficient basis to

vary the timetable. I do not think that the Arbitrator was procedurally unfair. The

decision may have been robust from Kenworth's point of view. Other arbitrators in

a similar position might have come to a different conclusion. But I cannot say that

the Arbitrator's approach here was unreasonable in the circumstances. I do not

think that there is ground here for misconduct.

Section of the Judgment delivered by the Judge of the Court of First Instance

Litigation Arbitration

Interdiscursivity in Arbitration & Litigation Documents

� To enhance understanding of the nature and function of professional, corporate, institutional discursive practices;

� To demystify construction, interpretation, & exploitation of professional genres to communicate professional, institutional, and corporate interests;

CRITICAL GENRE ANALYSIS

corporate interests;

� To raise awareness about the use & abuse of language in such Contexts;

� The conflict between discourse practices and professional practices;

� The tension between ‘generic integrity’ & ‘genre bending’

Frommel, Stefan N. and Rider, Barry A.K. (eds) 1999. Conflicting Legal Cultures in

Commercial Arbitration: Old Issues and New Trends. The Hague: Kluwer Law International.

ICCA (International Council for Commercial Arbitration) 1998. International

Dispute Resolution: Towards an International Arbitration Culture. Albert Jan van den Berg (Gen. ed.). Dordrecht: Kluwer Law International.

Jarvin, Sigvard 1999. “Leading Arbitration Seats: A (Mostly European) Comparative View”. In Frommel and Rider (eds), 39- 61.View”. In Frommel and Rider (eds), 39- 61.

Lalive, Pierre 1992. “On Communication in International Arbitration”. The American

Review of International Arbitration 3 (1-4): 79-82.

Lazareff, Serge 1999. “International Arbitration: Towards a Common Procedural Approach”. In Frommel and Rider (eds), 31-38.

Lowenfeld, Andreas F. 1999. “International Arbitration as Omelette: What Goes into the Mix”. In Frommel and Rider (eds), 19-30.

Principal InvestigatorPrincipal Investigator

Professor Vijay Bhatia, City University of Hong Kong

CoCo--Investigators Investigators

Professor Christopher N. Candlin, Macquarie University, Australia

Rajesh K Sharma, Macau University of Science and Technology,

Christopher To, Hong Kong Arbitration Centre

Project Associates

Dr Jane Lung, Hong Kong Polytechnic University

Christoph Hafner, City University of Hong Kong

Research Assistant

Ms Azra Hussain, City University of Hong Kong

Doctoral Researchers

HAN Zhengrui Li Xiaoyu

International Collaborators

Australia Dr Luke Nottage, Sydney Law, Australia

Brazil Dr Celina Frade, Rural University of Rio de Janeiro, Brazil

Brunei Professor Paroo Nihalani, Universiti Brunei Darussalam

Singapore Professor Paroo Nihalani, Universiti Brunei Darussalam; Dr Sujata Kathpalia, Nanyang Technological University

Croatia Professor Susan Šarčević, Faculty of Law, University of Rijeka, Croatia

Denmark Dr Jan Engberg, Aarhus School of Business, Denmark

Finland Dr Tarja Salmi-Tolonen University of Joensuu, Finland

France Dr Anne Wagner Université du Littoral Côte dOpale, France

Germany Professor Dorothee Heller, German Linguistics, University of Bergamo, Italy

Italy Professor Maurizio Gotti, & Dr Ulisse Belotti, University of Bergamo, Italy

Professor Giuliana Garzone, & Dr Paola Catenaccio, University of Milan, Italy

Professor Paola Evangelisti University of Rome for Sport and Movement, Italy,

Girolamo Tessuto, Faculty of Law, Seconda Università degli Studi di Napoli, Italy

India Mr Gajender Kumar, Advocate, New Delhi, India

Ireland /France Ms Sophie Cacciaguidi-Fahy The National University of Ireland, Ireland

Japan Professor Yasunobu Sato, & Professor Ric Powell, Nihon University, Tokyo, Japan

Malaysia Professor Azirah Hashim, Faculty of Languages and Linguistics, University of Malay, Malaysisa

PRC Ms WangWenying Arbitration Research Institute, China Chamber of International Commerce;

Mr Yu Jianlong China International Economic and Trade Arbitration Commission, China

Poland Dr Joanna Jemielniak, Kozminski Business School, Warsaw , Poland

Spain Dr Ignacio Vazquez Orta, Ms Rosa Lorés, Ms Isabel Corona, University of Zaragoza, Spain,

Mr. David J. A. Cairns, partner in the dispute resolution, B. Cremades Y Asociados

United Kingdom Dr Janet Cotterill, University of Cardiff, Mr. John Jarvis, Advocate and Arbitrator, London, UK

Dr Colin Y. C. Ong, Dr Colin Ong Legal Services in Brunei Darussalam

Major Differences Between Arbitration and Litigation

1. Litigation is sponsored by the state, whereas arbitration is privately agreed.

2. In litigation, the proceeding take place in public space (No expectation of confidentiality), whereas in arbitration they take place in a private space (Expectation of Confidentiality).

3. In litigation, jurisdiction and powers of the court are derived 3. In litigation, jurisdiction and powers of the court are derived from law, whereas in arbitration, tribunal powers are ceded by the parties at dispute.

4. In litigation, the institution of legal action is a matter of right, whereas in arbitration it is possible only by mutual agreement.

5. Litigation is jurisdictional or territorial-based, whereas arbitration is enforced internationally by the New York Convention 1958.

• The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards New York Convention is the starting point for any discussions on International Arbitration.

• The UNCITRAL Model Law of 1985 virtually repeats the grounds for refusal of enforcement of the The UNCITRAL Model Law of 1985 virtually repeats the grounds for refusal of enforcement of the New York Convention in its model for national arbitration legislation. United Nations Commission on International Trade Model Law on International Commercial Arbitration (UNCITRAL)

Right to present case

� Article V(1) of the NYC provides that

� “Recognition and enforcement of the award may be

refused, at the request of the party against whom it is

invoked, only if that party furnishes to the competent invoked, only if that party furnishes to the competent

authority where the recognition and enforcement is

sought, proof that (b) The party against whom the

award is invoked was not given proper notice of the

appointment of the arbitrator or of the arbitration

proceedings or was otherwise unable to present his

case”