Abstract
The paper takes into consideration the different degrees of power and control that can be exercised by the mediator/arbitrator. This issue is investigated with particular regard to such aspects as the nature of the ADR procedure adopted, the cultural context in which the procedure takes place, and the formulation of specific legal norms. The analysis both of a few arbitration rules and some data from real arbitral proceedings shows great reliance on the arbitrator’s discretion and use of common sense, which is in line with the idea itself of arbitration. Moreover, the high degree of power autonomy enjoyed by the arbitrator during the whole procedure derives from the presupposition that the parties accept the arbitrator’s personal opinion and final judgment and from the fact that the majority of the disputes in international commercial arbitration are of a technical and complicated nature. The analysis also shows that the legal background of most arbitrators tends to surface even when they are involved in alternative dispute resolution proceedings and is clearly visible in the orderly allocation of turns and the strict control over the procedures to be followed. Especially when arbitrators are lawyers or judges, they tend to promote a feeling of belonging to the same professional community, which induces a greater spirit of cooperation and a lowering of the control level.
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Notes
The UNCITRAL Model Law on International Commercial Arbitration was issued by the United Nations in 1985 (and later integrated into the laws of several countries with varying constitutional, sociocultural and economic conditions) in order to provide a model for harmonisation purposes. This process of harmonisation has been the object of analysis of an international research project entitled Generic Integrity in Legislative Discourse in Multilingual and Multicultural Contexts. The project has investigated the linguistic and discoursal properties of a multilingual corpus of international arbitration laws drawn from a number of different countries, cultures, and socio-political backgrounds, written in different languages, and used within and across a variety of legal systems. Some of the results of the project are presented in [7–9].
The cases analysed here are part of a study of arbitration discourse carried out by the Bergamo Unit (led by the present writer) of the international research team working on the project International Commercial Arbitration Practices: A Discourse Analytical Study. The international project is coordinated by Prof. Vijay Bhatia of the University of Hong Kong. For details see the web page of the project at <http://www1.english.cityu.edu.hk/arbitration/arbitration/index.html>. The analysis is based on the official transcripts of the arbitral panel sent to the parties’ counsels. The examples reported here are drawn from [17, 18]. Dr Patrizia Anesa and Dr. Stefania Maci are members of the Bergamo Unit.
A: arbitrator (sole arbitrator or president of the panel)/AB: arbitrator (member of the panel)/D: defendant/DL: defendant’s lawyer/P: plaintiff/PL: plaintiff’s lawyer.
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Gotti, M. Exercising Power and Control in Arbitration Proceedings. Int J Semiot Law 24, 179–193 (2011). https://doi.org/10.1007/s11196-010-9204-7
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DOI: https://doi.org/10.1007/s11196-010-9204-7