Sociology of Arbitration: New Tools for the New Times

Abstract

Arbitration as a method of addressing cross-border commercial disputes has enjoyed a remarkable, global success. The ‘phenomenal boom’ of commercial arbitration has led to a far-reaching replacement of domestic litigation by this mechanism, and to privatization of resolution of international commercial cases. This highly successful example of legal globalization, achieved – atypically – primarily by private means, is also a dynamically evolving phenomenon.The article identifies three key areas of tensions, which generate new developments in commercial arbitration. First, the tension between procedural formality and flexibility can be observed, as reflected in the well-established judicialization trend, confronted with a recent renewed interest in mediation and 'soft' hybrid procedures. Second, concurrence of global and local influences (as seen in the American and Asian ‘waves’ in arbitration) affects, inter alia, professional culture of arbitration practitioners. Finally, the tension between public and private interests and values, which influences procedural preferences and solutions, though certainly not as prominent as in investment arbitration, can be identified.As a consequence, methodological tools, used for empirical research on international commercial arbitration are revisited, so as to allow for capturing new developments in this field in a most accurate, possible manner. A highly innovative, multi-method, sequential model of research is introduced, which addresses both the static and dynamic components of the field, and is based on a triangular structure of formal institutions, social practices and cultural values. A systematic, paced combination of quantitative and qualitative methods is proposed, with an introduction of tools not used on a larger scale in the study of arbitration so far, such as ethnographic research and focus group interviews.