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2020 J. Disp. Resol. 293 (2020)
International Arbitration as Comparative Law in Action

handle is hein.journals/jdisres2020 and id is 301 raw text is: International Arbitration as Comparative Law in Action Joshua Karton* The idea of comparative law in action seems nonsensical given the sterile and academic reputation of comparative law as a discipline. This Article argues that comparative law in action does not merely exist, it thrives in the field of international commercial arbitration (ICA ). Comparative law methods pervade every stage of an international arbitration and are indispensable to ICA practice. For many aspects of international arbitral proceedings, multiple laws conceivably apply. With no default options, the parties must make numerous choices; there is too much law. For other aspects of ICA, there is too little law : no applicable body of law provides any legal rule binding the parties or the arbitral tribunal, which must instead determine or develop the governing legal regime anew for each arbitration. In both situations too much law and too little comparative law methods are essential. Moreover, even ifarbitrators and counsel were not constrained to think comparatively, the professional context within which they work would ensure that comparativism remains central to ICA practice. The Article concludes by considering the implications of international arbitration as comparative law in action, for comparative law as a discipline and for the development of transnational law in the Twenty First Century. I. INTRODUCTION It is hard to know whom to credit for the insight that international arbitration is comparative law in action. I first heard the phrase in 2012 when I interviewed the late Pierre Lalive, one of the fathers of the field.1 In the interview, he attributed it to Lowenfeld, another leading arbitrator of the elder generation, but I have never been able to track down a published source. Karrer also used the phrase in his treatise on international arbitration practice.2 Whatever its provenance, the concept stuck in my mind; it has intrigued me but also bothered me. * Associate Professor and Associate Dean for Graduate Studies and Research, Queen's University Faculty of Law. I am grateful to participants in the American Society of Comparative Law Annual Meeting, held at the University of Missouri in October 2019, for feedback and encouragement, and to Professor S.I. Strong for inviting me both to present this paper at the Annual Meeting and to publish it in the Journal of Dispute Resolution. I also received helpful questions and suggestions from attendees at the faculty workshops of the National Taiwan University and the National Chiao Tong University in Taiwan. Finally, thanks are due to Gary Bell for sharing with me the text of an as-yet unpublished book chapter, which is cited several times below. This Article is dedicated to my father, Michael Karton, who passed away when it was nearing completion. Dad read practically everything I wrote, from kindergarten until an early draft of this article. 1. JOSHUA KARTON, THE CULTURE OF INTERNATIONAL ARBITRATION AND THE EVOLUTION OF CONTRACT LAW (2013) (excerpts from the interview were presented anonymously, but since Professor Lalive has since passed away, I feel comfortable using his name in association with this general observation). 2. PIERRE KARRER, INTRODUCTION TO INTERNATIONAL ARBITRATION PRACTICE 18 (2014).

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