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The Culture of International Arbitration and The Evolution of Contract Law

The Culture of International Arbitration and The Evolution of Contract Law

Author: Joshua D H Karton
Publisher: Oxford University Press
ISBN: 9780199658008
Published In: March 2013
Format: Hardback , 312 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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Builds a comprehensive theoretical framework to explain and predict commercial arbitration decisions on issues of substantive law
Draws practical conclusions about the impact of arbitral decision-making on the choices made in practice
Includes comparative analysis from interviews with expert international arbitrators and national court judges, case studies, and publicly available arbitral awards
Identifies the legal and social norms governing an emerging culture of international arbitration, and their implications for the evolution of contract law

This unique study investigates a theory of international arbitration culture alongside the publicly available arbitral awards, in order to make predictions about the contract law principles that international arbitrators are likely to favour. Drawing on interviews with prestigious practitioners in a range of jurisdictions, as well as case studies, conference papers, and unpublished awards, it presents a comparative analysis of arbitral and judicial responses to contractual principles.

Part I presents the divergence in outcomes between national court litigation and international arbitration in relation to substantive law determinations, conducting in-depth case studies in two areas: the suspension of performance in response to non-performance, and the admissibility of extrinsic evidence to interpret contracts. Part II accounts for the conclusions of Part I with a comprehensive theory of arbitral decision-making, grounded in evidence gathered first-hand from arbitrators themselves.

Readership: Academics and practitioners in the field of commercial arbitration; postgraduate students of arbitration and contract law; business leaders and consultants working in international trade.

1. Introduction
I: Background
II: Methodology and Structure
Part 1: A Cultural Theory of International Arbitral Decision-making
2. Studying International Arbitral Culture
I: Introduction
II: The Nature and Importance of Culture
III: The Current State of International Arbitral Culture
IV: Methodology
V: Conclusion
3. Norms Arising from the Institutional Structure of International Commercial Arbitration
I: Introduction
II: Sources of and Constraints on Arbitral Authority
III: The Professional Context of Arbitration
IV: International Commercial Arbitration as a Competitive Marketplace
V: Conclusion
4. Norms Arising from the Values Shared by International Commercial Arbitrators
I: Introduction
II: Party Autonomy
III: The Service of Business
IV: Neutrality
V: Internationalism
VI: Conclusion
Part 2: International Arbitration Culture and Contract Law
5. Substantive Law Determinations in International Commercial Arbitration: The Legal Rules
I: Introduction
II: Application of Different Rules of Law in International Arbitration and National Court Litigation
III: Ascertainment of the Content of the Governing Law
IV: Conclusion
6. Case Study 1: Suspension of Performance
I: Introduction
II: The Remedy of Suspension of Performance
III: Suspension of Performance in Comparative Context
IV: Suspension of Performance in International Commercial Arbitration
V: Conclusion
7. Case Study 2: The Interpretation of Contracts
I: Introduction
II: Contractual Interpretation in Comparative Context
III: Contractual Interpretation in International Commercial Arbitration
IV: Conclusion
8. The Future of Contract Law

Joshua D H Karton, Assistant Professor, Faculty of Law, Queen's University, Ontario

Joshua Karton is an Assistant Professor in the Faculty of Law at Queen's Univeristy, Ontario. He is admitted to the New York Bar and the American Bar Association, and is a member of the Canadian Council on International Law. He previously practiced as an Associate at Cleary Gottlieb Steen & Hamilton LLP, New York. A section from the author's original thesis has been published as 'Contract Law in International Commercial Arbitration: the Case of Suspension of Performance' (2009) 58 ICLQ, winning the ICLQ Young Scholar Prize for best article by an author under 35.