Arbitration in Comparative Perspective

This chapter explores various arbitration issues from East-West and common law-civil law comparative viewpoints. The term “East” refers generally to certain prominent Asian jurisdictions (e.g., China, Hong Kong, Singapore, Japan and Korea); while the “West” represents some of the major Continental European civil law jurisdictions (e.g., France, Germany and Switzerland), as well as the main Anglophonic jurisdictions traditionally viewed as main players in the common law world in the “West” (e.g., the United Kingdom, the United States, Canada and Australia).Three driving forces, as argued in this chapter, exert varying degrees of influence and account substantially for variations in the arbitration issues considered: (1) cultural dissimilarities between the East and the West; (2) operational differences in the practice of common law and civil law legal systems; and (3) variances in dispute resolution traditions among jurisdictions (e.g., a longstanding preference for using mediation rather than litigation and arbitration).Various arbitration issues will be examined. First, the relationship between alternative dispute resolution (ADR) and arbitration at a conceptual level in differing legal cultures is discussed. Next, the different permutations underlying the formation and operation of the arbitral tribunal across the surveyed jurisdictions will be analyzed, before examining the issue of juridification of arbitration tribunal processes. Finally, dispute resolution traditions are discussed and the diverse attitudes toward med-arb among legal systems and cultures are analyzed. In each section, this chapter explores whether and to what extent the aforementioned three driving forces contribute to the jurisdictional differences