The Culture of American Arbitration and the Lessons of ADR
Rau, Alan Scott, Texas International Law Journal
For the Texas International Law Journal's Globalization Symposium this year, I had originally thought to tell-once again-the cheerful tale of cultural conflict progressively giving way to a growing harmonization in the practice of international arbitration.
We know that arbitration (in the words of the prophets of private ordering) is at bottom little more than "the parties' dream."1 But we also know that in practice-given the skeletal nature of most statutes and institutional rules-what an arbitration looks like will largely be determined by the identity of the parties' counsel and of the arbitrators themselves: Any given arbitral tribunal is likely to "develop its own microculture."2 So in telling this story, we would most likely begin with the familiar procedural headaches stemming from the civil law/common law divide in the processing of civil disputes. And we would note that such difficulties can only have been exacerbated by the growing dominance-the "attractive allure," the "soft power," the "magnetic attraction"-of the full-service Anglo-American law firm.3 The intrusion of these firms into what had traditionally been a kind of homogenous club had, supposedly, brought in its train many of the habits and presuppositions of American adversarial legalism-such as an insistence on motion practice, extensive discovery, oral testimony, cross examination, witness preparation, and battling partisan experts-all quite alien to the preexisting culture.4
And yet-as the usual upbeat ending has it-we are increasingly seeing in the actual governance of international arbitrations a pattern of ""convergence"; there has developed a set of common assumptions as to how an arbitration will be conducted, drawing from and harmonizing the assumptions of divergent legal cultures.5 In addition, this gradual homogenization of arbitral practice has gone hand in hand with a growing uniformity in national legislation and in the rules of administering institutions. Competition for the invisible export of arbitration services has led to a widespread acceptance of the principle of party autonomy-and thus to the liberation of the arbitral process from the idiosyncrasies and parochial burdens of domestic legal systems.6
Such a sunny account of the "globalization" of international arbitration-in the form of increasingly shared norms and expectations-might indeed have been an appropriate and well-chosen one for a symposium like this one. Unfortunately, though, this is an oft-told tale, and it would simply be tedious to rehearse it again here. So instead of doing so, I am going to tell a slightly different story-and this will be a story that focuses rather on peculiarity and divergence.
I will want to reflect here on the peculiarly American approach to the arbitration of commercial disputes-and in this connection I will want to call attention to what I think are certain distinctive features that are characteristic of our understanding of the subject. All of these serve markedly to distinguish our own perspective from that of most other legal systems, whether of the "civil law" or the "common law" variety. All of them, as will readily be seen, are closely related. And all of them have influenced, and have been influenced by, a quarter-century of learning about ADR that has percolated into the study and the profession of law. These are, of course, nothing more than tendencies or questions of degree-I am fully aware of the dangers of caricature, and there is undoubtedly much here that any European academic or arbitrator could readily agree with. And for that matter, my own synthesis is quite likely to be based, not so much on American law as it happens to be-but on what it undoubtedly would be, if only people could manage to think more clearly.
The three traits I want to focus on are these: The American culture of arbitration can be characterized by its nature as (A) "contractual," as (B) "expansionist," or at least "elastic," and as (C) "a-legal. …