“Glocalisation” of arbitration

Despite the general trend of harmonization of arbitration, local cultures remain to play an active role in the practice of arbitration. I have argued for the “glocalization of arbitration,” which describes the entanglement process between “global standards” and “local norms” in international arbitration. (“Glocalization of Arbitration: Transnational Standards Struggling with Local Norms Through the Lens of Arbitration Transplantation in China”, Harvard Negotiation Law Review, 2013; “Glocalization’ of International Arbitration—Rethinking Tradition: Modernity and East-West Binaries Through Examples of China and Japan”, University of Pennsylvania East Asia Law Review, 2016).  Local differences and particularity still play an important role in creating unique cultural constellations. In the case of China, local culture that mixes the role of settlement facilitator and decision maker rooted in the practice of village leaders or elders in traditional Chinese society influenced the transplantation of arbitration in China and its subsequent practice, such as the wide acceptance of arbitrators acting as mediators (“An Empirical Study of Arbitrators Acting as Mediators in China”, Cardozo Journal of Conflict Resolution, 2014). The pilot project of interviews in Egypt further support such observations. As the crossroads of arbitration between European and non-European parties, arbitration in Egypt features both the international perspective and the domestic approaches (Tony Cole’s OGEMID post on “Arbitration in Egypt”). 

Even though procedural rules are becoming more standardized and less country-specific, expectations of process differ based on the cultural background of the parties, counsels or arbitrators.   International arbitration has not yet been able to bridge the cultural gaps between Western and non-Western legal norms, the conflicts between foreign and indigenous cultures, and differences in legal tradition between civil law and common law countries.  The very concept of arbitration is often interpreted differently by different cultures. When exercising the broad procedural powers, two different arbitrators, influenced by their cultural background and professional experience, may still conduct the arbitration proceedings differently, which may lead to divergent outcomes, just as Pissarro and Cézanne would paint differently while painting side-by-side on the same subject.  

For instance, American arbitrators generally do not have the same approach to discovery as French arbitrators. Egyptian arbitrators who received their legal education mainly in a civil law jurisdiction are likely to adopt a different approach to the proceedings than Egyptian arbitrators who are primarily trained in a common law jurisdiction.  Similarly, the parties and their lawyers always expect what they are familiar with to be the norm.  For instance, Anglo-American parties and their lawyers will most likely expect a highly adversarial approach, whereas Asian parties and their lawyers will expect an inquisitorial and conciliatory approach. As Tony Cole summarized in his OGEMID post on “Arbitration in Egypt”, some interviewees discussed how the drafting style in Arabic (relying on inferences and preference over long sentences) differed from the classically English style (concise and explicit). This influence of the cultural attributes of arbitrators, counsels, or lawyers is often implicit and sometimes unconscious.  However, one cannot overlook culture and its role in shaping institutional design and its influence on the process and even on the arbitration outcome.

On the other hand,  as discussed in Joshua Karton’s previous post on Comparative Law in International Arbitration, Comparative Law as International Arbitration, the interviews show that Egyptians arbitration practitioners typically receive an undergraduate degree in either the French or English programs at a leading university, followed by an LLM degree from an international academic institution. Training in multiple systems, especially common law systems, is considered essential for entry into the field of international arbitration.  A similar trend can also be observed in China. As a result, an Egyptian lawyer, a Chinese lawyer, and an English lawyer, all having taken the arbitration courses at one of the arbitration master’s programs, gone through the arbitration training at one of the professional organizations, and having worked in the arbitration practice group in one of the multinational law firms, may indeed produce a common set of expectations, norms and behaviors. 

Driven by competition within the law market, different arbitration forms may slowly converge to form a common culture in the international arbitration community—a phenomenon I described as “globalized localism.” McDonald’s glocalized menu is one example. The fusion of rock and hip hop, later known as “rap rock” is also a result of cultural diffusion.

The development of arbitration may continue to be a hybrid blended and creolized process of glocalization.  On the one hand, global processes are incorporated into the local setting—”localized globalism” or “micro-globalization.” On the other hand, local ideals, practices, and institutions are also projected onto global scenes—”globalized localism” or “macro-localization.” To move beyond the conventional common law-civil law, East-West dichotomy, more work needs to be done to study arbitration beyond Western Europe and North America. The interviews in Egypt, a melting pot of multiple cultures and traditions, is one such attempt. 

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