International arbitration and mediation in East Asia: Examining the role of domestic legal culture and globalization on shaping East Asian arbitration.

摘要

To date most research on international arbitration has focused exclusively on Western models of arbitration as practiced in Europe and North America. To extend this research internationally, this dissertation compares survey data collected in 1992 by Christian Buhring-Uhle regarding the reasons why arbitration practitioners in America, Germany, and Europe choose arbitration, the way in which amicable settlements are facilitated in arbitration, and the extent to which "alternative" procedures are employed with data collected from arbitration practitioners in East Asia.; Based on survey data, follow-up interviews, case analysis and statistics, and case studies, the dissertation examines three related questions: (1) Does diversity of culture and worldview, in particular, values and attitudes held in East Asia reflecting preferences for conciliated outcomes, translate into differing understandings and expectations of international arbitration procedure? If so, how do these differing expectations manifest themselves in international arbitration practice? (2) Are global economic and legal forces simultaneously exerting a harmonizing influence on arbitrator's expectations through conventions such as the UNCITRAL Model Arbitration and Conciliation Rules? And finally, (3) If diversity and harmonization simultaneously influence the practice of international arbitration, what suggestions do practitioners have for increasing the efficacy of the international arbitral system?; The findings indicate that while participants in East Asian international arbitration proceedings exhibit a greater openness to exploring settlement options and a greater degree of support for arbitrator-initiated settlement discussions than in western countries, at the same time global economic and legal forces are simultaneously exerting a harmonizing influence on key aspects of the arbitration procedure relating to pre-hearing directives, party statement of claims and defenses, and issuing of awards following the promulgation of conventions such as the UN Convention on Contracts for the International Sale of Goods and the UN Model Law on International Commercial Arbitration.; This research simultaneously challenges widely held assumptions that diversity of culture and norms represent fundamentally irreconcilable perspectives relating to commercial conflict. Rather, diversity of arbitration technique is compatible with convergence of overarching arbitration procedure.