Leading Advisers 2015
Leading advisor and arbitrator Jayshan Keejoo provides us with an exciting insight into arbitration culture and the legal industries and attitude to this emerging legal services on an international level.
The notion of living in a global world has been around for many years, but has our culture caught up with this? This question becomes particularly important when we look at legal fields such as arbitration. Among lawyers, international arbitration is still a new field, however it is fast becoming more visible due to its vast growth. Arbitration is now one of the most important means of resolution for international business disputes, including disputes between investors and the governments of countries in which they invest, known as “global governance.” Name: Dr Jayshan Keejoo Email: firstname.lastname@example.org Web: www.jayshankeejoo.com
Despite its importance, the actual decision-making of international arbitral tribunals remains opaque, especially when compared with that of courts. Normally, if we want to understand legal decisionmaking, lawyers would read up on a number of decisions, along with the laws on which those decisions are based. With international arbitration, this cannot be done for two main reasons. First, because most arbitrations are confidential and therefore the outcomes are not widely publicized. Second, there is no such thing as a law of international arbitration. Instead, arbitrations may be governed by any national or international set of laws chosen by the parties or by the tribunal. For example, many international shipping contracts are governed by English law, regardless of the nationality of the parties. Public disputes such as investor-state arbitrations are governed by public international law, which is notoriously uncertain and incomplete. With traditional legal tools, the key to understanding the decision-making of international arbitrators, and thereby the form of justice or governance provided by international arbitration, is the emerging legal culture of the international arbitration community. Lawyers often reject cultural explanations for legal outcomes because we are trained in the language of rules and precedents. Nevertheless, the notion of a legal culture is uncontroversial. Legal processes take place within a context of shared cultural norms and assumptions. Anyone who has had the slightest contact with a legal system knows that the law can never be reduced to just the applicable legal rules. If nothing else, the rules need interpreting, and there will always be situations for which no specific rule exists. Legal culture accounts for those situations by acting as a collective and accounting for it as best it sees fit. In my opinion this is the real purpose of a law school: to instill common ways of thinking and reaction and prepare students to apply the law properly. However, it is much harder to conceive of a shared legal culture in international arbitration, where lawyers and arbitrators don’t share a common nationality, language, religious/ethical system, or professional formation, or even access to a common body of governing laws and precedents. How can
a group as international arbitration practitioners share a legal culture? Do we even constitute an identifiable community? Despite differences, international arbitration practitioners actually have more in common than the body of legal practitioners within any one jurisdiction. After all, the gap between the work environment, perspective, and career path of a high prestige corporation lawyer and a sole practitioner in any given city is so great as to make it hard to see any significant bonds of common experience and interest between them. International arbitration practitioners tend to have attended a relatively small number of elite western universities to have developed their careers in large, corporate, usually Anglo-American firms or major universities, and to travel in both business and academic circles. We tend to share cosmopolitan, multinational backgrounds and speak multiple languages. We work repeatedly with each other and on disputes within a relatively narrow band of commercial subjects. It actually makes more sense to speak of an international arbitration community than to speak of a legal community within a country. As part of my research on international arbitration, I have identified several norms that comprise international arbitration culture. These norms inform a set of predictions about how arbitrators are likely to decide on commercial disputes and in turn how contract law will evolve through arbitral decisionmaking. In the absence of a shared set of codified rules this kind of socio-legal analysis is one of the only available means for making these kinds of predictions. In domestic legal communities, culture provides a shared frame of reference on the applicable laws and also fills the inevitable gaps in those laws. The same is true in the transnational sphere. Law has become simultaneously globalized and privatized. This transition has led to the emergence of a transnational community of international arbitration practitioners who have more in common with each other than they do with their compatriots. These kinds of stateless global communities are emerging in practically every sector of society and industry. We are sufficiently closely-knit to develop our own informal codes and mores. For better or worse, if we want to understand how these communities are transforming our societies, we have to pay attention to their cultures. In conclusion, the issues faced by international arbitration must be tackled head on. This poses a challenge to arbitrators, counsel and end-users to do more to bring parties together early on to avoid unnecessary time and costs. An important tool which can and should be used to achieve this is international mediation. This sentiment was perfectly captured by Albert Einstein, who once said, “In the middle of every difficulty lies opportunity.” Let us all seize the opportunity and bring one culture for our arbitration culture. Acquisition International - December 2015 53