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Joshua D H Karton, The Culture of International Arbitration and The Evolution of Contract Law, OUP, 2013

Joshua D H Karton, The Culture of International Arbitration and The Evolution of Contract Law, Oxford University Press, 2013

Table of Contents

Norms Arising from the Institutional Structure of International Commercial Arbitration

Joshua_Karton_Culture_of_International_Arbitration_and_The_Evolution_Contract_LawBuilds 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 study proposes a theory of international arbitration culture, tests this theory against real-world outcomes, and uses it to make predictions about the contract law principles that international arbitrators are likely to favour. Drawing on interviews with prestigious practitioners from a range of jurisdictions, as well as published arbitral awards, the writings of international arbitrators, and available statistical data on international arbitration, it presents a comparative analysis of arbitral and judicial responses to contract law issues.


Part I develops a theory of arbitral decision-making as influenced by a legal culture specific to the international commercial arbitration community. It identifies the specific social norms that make up that culture and considers how these norms might affect arbitrators decision-making on matters of substantive contract law. Part II tests the explanatory power of the theory developed in Part I by applying it to published decisions of international commercial arbitrators on two discrete areas of contract law: suspension of performance in response to non-performance and the interpretation of contracts. These case studies demonstrate that arbitrators and judges are likely to take divergent approaches, even when they are applying the same substantive laws. This divergence is explicable on the basis of international arbitrations unique culture. Finally, the cultural theory of international arbitral decision-making is applied to make predictions about the ways that contract law is likely to evolve through the decisions of international arbitrators.


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

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