This book offers an in-depth study of the role of culture in modern day arbitral proceedings. It contains a detailed analysis of how cultural miscommunication affects the accuracy, efficiency, fairness, and legitimacy in both commercial and investment arbitration when the arbitrators and the parties, their counsel and witnesses come from diverse legal traditions and cultures. The book provides a comprehensive definition of culture, and methodically documents and examines the epistemology of determining facts in various legal traditions and how the mixing of traditions influences the outcome.
This book offers an in-depth study of the role of culture in modern day arbitral proceedings. It contains a detailed analysis of how cultural miscommunication affects the accuracy, efficiency, fairness, and legitimacy in both commercial and investment arbitration when the arbitrators and the parties, their counsel and witnesses come from diverse legal traditions and cultures. The book provides a comprehensive definition of culture, and methodically documents and examines the epistemology of determining facts in various legal traditions and how the mixing of traditions influences the outcome.
Won L. Kidane is a Fulbright Scholar and a tenured Associate Professor of Law at the Seattle University School of Law, where he teaches international arbitration and litigation among other courses. He is the author of China-Africa Dispute Settlement (2011) and co-author of Litigating War: Mass Civil Injury and the Eritrea-Ethiopia Claims Commission (With Sean D. Murphy and Thomas R. Snider, OUP 2014). He has written dozens of articles published in law reviews and leading international law journals including Cornell, University of Pennsylvania, Vanderbilt, Emory, Fordham, and Wisconsin. Before becoming a professor at Seattle University Law School, he practiced as an arbitration attorney at DLA Piper and at Hunton & Williams, LLP in Washington, D.C. He is currently a partner at the Addis Law Group, LLP, a Washington D.C. based boutique international arbitration firm.
Inhaltsangabe
* Preface * Acknowledgments * Table Of Select Abbreviations * Table Of Cases * Table Of Statutes * Table Of Conventions * Part One * Culture And The Legal Framework And Theoretical Pillars Of International Arbitation * Chapter 1: Introduction * Chapter 2: Defining Legal Culture * A. A Brief Look At Culture In Transnational Business * B. Preliminary Thoughts On Culture In International Arbitration * C. Conclusion * Chapter 3: The Political And Cultural History Of International Arbitration In Various Legal Traditions * A. The Political And Cultural History Of Contemporary International Arbitration * B. The Evolution Of The Courts' Tolerance Of International Arbitration In Various Legal Traditions * 1. Common Law Legal Tradition * 2. Civil Law Legal Tradition * 3. Chinese Legal Tradition * 4. African Legal Tradition * Chapter 4: The Theories And Theoreticians Of International Arbitration * A. The Theories And Theoreticians * 1. Emmanuel Gaillard's Theory * 2. Jan Paulsson's Theory * 3. Catherine Rogers' Theory * 4. Gary Born's Theory * 5. Sundaresh Menon's Theory * 6. David Caron's Theory * B. Conclusion * Chapter 5: The Evolving Justifications Of International Arbitration * A. Initial Justifications * B. Contemporary Justifications * C. Assessing The Credibility Of The Contemporary Justifications * 1. Jurisdictional Justification * 2. Promotional Justifications * D. Conclusion * Chapter 6: Culture And The Legal Infrastructure Of Commercial Arbitration * A. A Cultural Analysis Of The Legal Framework * 1. The New York Convention * B. Conclusion * Chapter 7: Culture And The Legal Infrastructure Of Investment Arbitration * A. The Icsid Legitimacy Debate * 1. Empirical Studies * 2. A Closer Look At The Empirical Studies * B. A Historical Perspective * 1. The Doctrinal Debate * 2. Why Was Icsid Accepted? * C. Quantitative Indicators * 1. Arbitrator Nationality * 2. Counsel Nationality * 3. Claimant Nationality * 4. Location * 5. Outcome On Jurisdiction * 6. Outcome On The Merits * 7. Allocation Of Cost * D. The Virtues Of Aristocratic Justice * 1. Who Are The "Virtuous" Men? * 2. Why Do The Africans Appoint The Virtuous Men? * E. Conclusion * Part Two * Deconstructing The Mythology Of Specialized Knowledge In International Arbitration * Chapter 8: Diversity In The Epistomology Of Judicial Fact Finding In The Major Legal Traditions Of The World: Indicators For Conduct In International Arbitration * A. Fact Finding In The Common Law Legal Tradition * B. Fact Finding In The Civil Law Legal Tradition * C. Fact Finding In The Chinese Legal Tradition * D. Fact Finding In Islamic Legal Tradition * E. Conclusion * Chapter 9: Fact Finding And Cultural Diversity In International Arbitration * A. Fact-Finding In The Fog * B. Culture As Fact; Fact As Culture * C. Interpretation And Application Of Law As A Cultural Practice * Chapter 10: The Typical Process For Selection And Challenge Of Arbitrators * A. Appointment And Challenge * 1. Appointment * 2. Challenge * 3. The Conduct Of Arbitration * 4. The Iba Rules On The Taking Of Evidence In International Arbitration * B. Conclusion * Chapter 11: The Mythology Of Specialized Knowledge * A. Jan Paulsson's Question: "Who's Complaining?" * 1. The Audacity Of Elitism * 2. Culturally Different Facts And Concepts: Applied Legal Philosophy * B. Conclusion * Chapter 12: Conversations On The Role Of Culture In International Arbitration * 1. Introduction * 2. Conversations File * A. Conversation With Judge Abdulqawi Yusuf, Vice President Of The International Court Of Justice. * B. Conversation With Judge Judge Xue Hanqin, Judge Of The International Court Of Justice. * C. Conversation With Judge Julia Sebutinde, Judge Of The International Court Of Justice. * D. Conversation With Jurist No. 1 * E. Conversation With Jurist No. 2 * F. Conversation With Jurist No. 3 * G. Conversation With Jurist No. 4 * H. Conversation With Mr. Thomas R. Snider * Chapter 13: Summary Of Conclusions * Bibliography * Index
* Preface * Acknowledgments * Table Of Select Abbreviations * Table Of Cases * Table Of Statutes * Table Of Conventions * Part One * Culture And The Legal Framework And Theoretical Pillars Of International Arbitation * Chapter 1: Introduction * Chapter 2: Defining Legal Culture * A. A Brief Look At Culture In Transnational Business * B. Preliminary Thoughts On Culture In International Arbitration * C. Conclusion * Chapter 3: The Political And Cultural History Of International Arbitration In Various Legal Traditions * A. The Political And Cultural History Of Contemporary International Arbitration * B. The Evolution Of The Courts' Tolerance Of International Arbitration In Various Legal Traditions * 1. Common Law Legal Tradition * 2. Civil Law Legal Tradition * 3. Chinese Legal Tradition * 4. African Legal Tradition * Chapter 4: The Theories And Theoreticians Of International Arbitration * A. The Theories And Theoreticians * 1. Emmanuel Gaillard's Theory * 2. Jan Paulsson's Theory * 3. Catherine Rogers' Theory * 4. Gary Born's Theory * 5. Sundaresh Menon's Theory * 6. David Caron's Theory * B. Conclusion * Chapter 5: The Evolving Justifications Of International Arbitration * A. Initial Justifications * B. Contemporary Justifications * C. Assessing The Credibility Of The Contemporary Justifications * 1. Jurisdictional Justification * 2. Promotional Justifications * D. Conclusion * Chapter 6: Culture And The Legal Infrastructure Of Commercial Arbitration * A. A Cultural Analysis Of The Legal Framework * 1. The New York Convention * B. Conclusion * Chapter 7: Culture And The Legal Infrastructure Of Investment Arbitration * A. The Icsid Legitimacy Debate * 1. Empirical Studies * 2. A Closer Look At The Empirical Studies * B. A Historical Perspective * 1. The Doctrinal Debate * 2. Why Was Icsid Accepted? * C. Quantitative Indicators * 1. Arbitrator Nationality * 2. Counsel Nationality * 3. Claimant Nationality * 4. Location * 5. Outcome On Jurisdiction * 6. Outcome On The Merits * 7. Allocation Of Cost * D. The Virtues Of Aristocratic Justice * 1. Who Are The "Virtuous" Men? * 2. Why Do The Africans Appoint The Virtuous Men? * E. Conclusion * Part Two * Deconstructing The Mythology Of Specialized Knowledge In International Arbitration * Chapter 8: Diversity In The Epistomology Of Judicial Fact Finding In The Major Legal Traditions Of The World: Indicators For Conduct In International Arbitration * A. Fact Finding In The Common Law Legal Tradition * B. Fact Finding In The Civil Law Legal Tradition * C. Fact Finding In The Chinese Legal Tradition * D. Fact Finding In Islamic Legal Tradition * E. Conclusion * Chapter 9: Fact Finding And Cultural Diversity In International Arbitration * A. Fact-Finding In The Fog * B. Culture As Fact; Fact As Culture * C. Interpretation And Application Of Law As A Cultural Practice * Chapter 10: The Typical Process For Selection And Challenge Of Arbitrators * A. Appointment And Challenge * 1. Appointment * 2. Challenge * 3. The Conduct Of Arbitration * 4. The Iba Rules On The Taking Of Evidence In International Arbitration * B. Conclusion * Chapter 11: The Mythology Of Specialized Knowledge * A. Jan Paulsson's Question: "Who's Complaining?" * 1. The Audacity Of Elitism * 2. Culturally Different Facts And Concepts: Applied Legal Philosophy * B. Conclusion * Chapter 12: Conversations On The Role Of Culture In International Arbitration * 1. Introduction * 2. Conversations File * A. Conversation With Judge Abdulqawi Yusuf, Vice President Of The International Court Of Justice. * B. Conversation With Judge Judge Xue Hanqin, Judge Of The International Court Of Justice. * C. Conversation With Judge Julia Sebutinde, Judge Of The International Court Of Justice. * D. Conversation With Jurist No. 1 * E. Conversation With Jurist No. 2 * F. Conversation With Jurist No. 3 * G. Conversation With Jurist No. 4 * H. Conversation With Mr. Thomas R. Snider * Chapter 13: Summary Of Conclusions * Bibliography * Index
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