Arbitration Discourse in Asia

by Vijay K. Bhatia (Volume editor) Maurizio Gotti (Volume editor)
©2015 Edited Collection 332 Pages
Series: Linguistic Insights, Volume 208


Arbitration is the most widely used alternative method to resolve commercial disputes between parties. Since arbitration in international contexts is equally applicable to legal traditions across the world, there has been incessant effort on the part of all jurisdictions to harmonize principles and practices to establish a unified system of arbitration. As differences are difficult to reconcile, there has been quite a bit of interest and effort invested in the study of some of the key issues and challenges in the field.
This volume reports on one such initiative undertaken by an interdisciplinary project, whose main objective is to investigate the norms and arbitral practices in some important Asian countries from the point of view of discursive practices prevalent in these jurisdictions.
The project focuses on the documents used in arbitration in the main Asian countries and compares them with those employed in other continents. The investigated texts include not only norms and awards, but also interviews with professionals in the field so as to gain direct insights into the linguistic and textual choices employed in the drafting of these documents.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Contents
  • Introduction
  • Focus on normative texts
  • A Linguistic Insight into China’s Arbitration Law
  • Legislating on Arbitration in Singapore: Linguistic Insights
  • Arbitration in Japan: Insights into the Arbitration Law and the JCAA Rules
  • Norms Concerning the Appointment and Challenge of Arbitrators in the Legislation of the People’s Republic of China
  • Focus on discursive practices
  • How Do East and West Meet in Arbitration Discourse?
  • Exploring Med-Arb and Arb-Med Discourse in China: Challenges and Prospects
  • Critical Aspects of Arbitration Practices: Narratives from Singapore
  • Focus on arbitration awards
  • Arbitration Awards in the East and the West: A Comparative Analysis with a Focus on Domain Name Dispute Resolution
  • Deonticity and Authoritativeness in Hong Kong International Arbitration Awards
  • ‘It is amply clear that there is no convincing evidence to infer that’: Evidentiality in Indian Arbitral Awards
  • Discursive Peculiarities of Indian Arbitral Awards
  • Notes on Contributors
  • Series index

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1. Arbitration discourse in Asia

Arbitration is the most widely used alternative dispute resolution method to resolve commercial disputes between parties. International commercial arbitration is considered a creature of party agreement as it crucially depends on the parties’ agreement to resolve disputes through private adjudication by a single arbitrator, or a tribunal of more than one, appointed in accordance with rules of a specific arbitration institution that the parties themselves have agreed to adopt, usually by including an arbitration clause in their contract. The practice of international arbitration has developed in a manner to allow parties from different legal and cultural backgrounds to use any variety of English or other language to resolve their disputes without any interference from the system of courts. Since arbitration in international contexts is equally applicable to all jurisdictions and legal traditions across the world, there has been incessant effort on the part of all jurisdictions to harmonize principles and practices to establish and follow a unified system of arbitration, which is not an easy task. Local laws, arbitrators’ background, experience and expertise, language preference, and socio-political as well as economic considerations, in addition to differences in jurisdictional constraints and contestations are often difficult to reconcile, and hence there has been quite a bit of interest and effort invested in the study of some of the key issues and challenges in the field.

This volume reports on one such initiative undertaken by members of an interdisciplinary project on Asian Arbitration Law, of which one of the significant components is investigating Arbitration Discourse in Asia. The project has been part of the programme ‘ITALY(Italian TALented Young ®esearchers)’ financed by the University of Bergamo ← 7 | 8 → (Italy).1 The main objective of this two-year project is to investigate the norms and arbitral practices in some of the important Asian countries, such as China, India, Singapore, Hong Kong, Malaysia and Japan, not only from a juridical point of view, according to the perspectives of civil trial law and employment law, but also from the point of view of discursive practices prevalent in these jurisdictions.

From the linguistic-textual point of view, the project focuses on the main documents used in arbitration in some of these Asian countries and often compares them with the discursive practices employed in Italy and other countries of the European Union. The investigated documents include not only norms and awards, but also interviews with professionals in the field so as to gain direct insights into the linguistic and textual choices employed in the drafting of these documents. In particular, the investigation attempts to verify the degree of interdependence that discursive practices in Asia show when compared to the ones used in other civil law and common law jurisdictions. Some of the findings from this project were presented at the International Conference on Asian Arbitration Discourse held in Bergamo on 18–19 September 2014.

In addition, there is an attempt to analyse the extent to which arbitral practices in Asia are being ‘colonized’ by those used in litigation, a phenomenon recently observed in alternative dispute resolution proceedings in several Western countries. This issue of the extent to which integrity of arbitration as non-legal practice is maintained in international commercial arbitration was the focus of two earlier international projects in which more than 20 international teams of researchers both from discourse analysis and law as well as arbitration collaborated over a period of more than eight years. These projects were Generic Integrity in Legislative Discourse in Multilingual and Multicultural Contexts and International Commercial Arbitration Practices: A Discourse Analytical Study.2 ← 8 | 9 →

By drawing on discourse-based data (narrative, documentary and interactional), these projects investigated the extent to which the ‘integrity’ of arbitration principles is maintained in international commercial arbitration practice, and to what extent, if indeed at all, there is an increasing level of influence from litigative processes and procedures over arbitration practice. This was achieved by analyzing arbitration in action to investigate the extent to which legal expertise, training, and experience in relation to arbitration processes and procedures are essential and helpful in international commercial arbitration practice.

Some of the major findings were published in a number of edited volumes (Bhatia et al. 2003a, 2003b, 2005, 2008a, 2008b, 2010, 2012a and 2012b) as well as special issues of two international journals (Bhatia/Engberg 2004; Bhatia 2011), in addition to several international conferences organized by the project members.

2. Contents of the volume

The present volume is divided into three sections, each investigating a particular issue relevant to the analysis of arbitration discourse in the Asian context and focussing on different types of textualizations: namely, normative texts, discursive practices, and arbitration awards.

2.1 Focus on normative texts

In the opening chapter of the first section, MAURIZIO GOTTI provides an analysis of the Arbitration Law of the People’s Republic of China (PRC) in order to highlight a few of its legal and linguistic features that are indicative of some of the characteristics of the arbitration process which are typical of the Chinese system. The comparison of this text with that of the UNCITRAL Model Law shows both similarity in terms of topical content and coverage, but also interesting divergences in terms of clarity of expression and conceptual and terminological precision, which may also depend on the common law tradition reflected in the UN document ← 9 | 10 → and the civil law perspective adopted by Chinese legislators. Moreover, the investigation confirms that the drafting of the PRC text has been influenced by the linguistic constraints and legal traditions of the local community to which the provision is addressed, as can be seen in the choice of particular terms to refer to the local socio-cultural system as well as the analysis of the specificity of information included in the two texts taken into consideration, which differ significantly, due to differences in socio-cultural expectations and practices that constrain social behaviour in local contexts.

GIROLAMO TESSUTO investigates the Singapore Arbitration Act from the perspective of language use in order to identify specific aspects of accessibility/readability of this legal discourse. The analysis shows that the drafting practices used in the statute replicate several linguistic resources implemented in the common law tradition, thus revealing generic similarities across Western European and Eastern (Asian) legal cultures and systems. In particular, the linguistic and discursive properties of the statute align the law applicable to domestic arbitration with the provisions of the UNCITRAL Model Law and the 1996 UK Arbitration Act. This alignment betrays the willingness of the drafters of the Singapore statute to adopt a globally harmonized and convergent philosophy of arbitration, which is meant to increase Singapore’s attractiveness as a national as well as international arbitration venue.

In the following chapter, PATRIZIA ANESA and FRANCESCA LOCATELLI discuss the main features of arbitration in Japan as provided by the local Arbitration Law. The authors also investigate the reasons why arbitration is scarcely used in the Japanese context, mainly tracing them in the non-litigative tradition of the local legal system. Anesa and Locatelli then investigate the role and the characteristics of the Rules of the Japanese Commercial Arbitration Association (JCAA), which is the main arbitral institution there. In particular, the analysis focuses on the comparison between the JCAA Rules and those of the International Chamber of Commerce, highlighting some interesting differences in how a few problematic issues are dealt with in both texts.

MAURIZIO GOTTI, PIERA PELLEGRINELLI and ELENA SIGNORINI investigate the texts of both the PRC Arbitration Law and the Law on Mediation and Arbitration of Labour Disputes in order to examine, in particular, the norms concerning the appointment and challenge to ← 10 | 11 → appointment of arbitrators. with the aim of detecting relevant legal and cultural aspects. The analysis of the two texts highlights that, from a juridical point of view, the intent of the Chinese legislature was to place arbitration in China in line with international practice, by introducing a few key, internationally recognized principles. However, the procedures for the appointment and challenge of arbitrators do not always prove to be as smooth as Chinese arbitration norms indicate. This study confirms that the issue of impartiality of arbitrators is a very complex matter, which needs to be regulated in a careful way in order to guarantee a smooth and fair resolution of both commercial and labour disputes.

2.2 Focus on discursive practices

The second section focuses on the discursive practices employed in some Asian countries concerning arbitration. In her chapter, TARJA SALMI-TOLONEN examines surveys and dispute indexes, cases, and media coverage representative of Eastern and Western arbitration discourse so as to discover both pragmatic and linguistic markers of similar or diverse attitudes towards the demands of global trading relationships both in partnership and conflict. The purpose of this chapter is also to find a methodology for a more detailed discursive and textual comparative study of arbitration approaches in the Western world and in Asia. Salmi-Tolonen concludes that – because of the multifaceted nature of international commercial arbitration ‒ the approach will inevitably have to be multidisciplinary for the answer to be as accurate as possible. Moreover, to better understand the specific characteristics, attention should be paid to the historical, political, societal and linguistic contexts of the arbitration events and their participants.

JOANNA JEMIELNIAK’s chapter examines the legal, cultural and discursive particularities of the hybrid process which combines arbitration with mediation or conciliation, as used in the Chinese legal tradition. By examining historical accounts of the use of hybrid processes in imperial China as well as in the Western legal tradition, the chapter unveils the historical roots and determinants of modern-day approaches to this hybrid process of dispute resolution. The chapter also explores methodological aspects of research on this issue, demonstrating how ← 11 | 12 → the presence of ‘soft’, conciliatory components in hybrid processes makes the results of a legal doctrinal, text-oriented analysis incomplete, as many of the key aspects of arb-med proceedings are oral. Jemielniak also argues that the existing quantitative studies of this subject should be supplemented by qualitative ones, so as to allow for an in-depth, comparative interpretation of the various local types of hybrid processes, of the functions they fulfil and of their legal and social consequences.

ULISSE BELOTTI and MARIACARLA GIORGETTI discuss some critical aspects of arbitration practices in Singapore, highlighting the complexity of its sets of regulations, both for domestic and for international arbitration. Their study then analyses the results of interviews with professionals involved in arbitration practice in Singapore, in which the respondents express their considerations about the local arbitration practices and also rate areas of concern which, in their view, are likely to make this process less attractive as an instrument of alternative dispute resolution. The most critical issues identified are: arbitration clauses, confidentiality and privacy in arbitration proceedings, costs and duration of arbitration, and cross-examination. Moreover, the interviewees discuss the common perception that arbitration has recently become similar to litigation.

2.3 Focus on arbitration awards

The third section of the volume deals with the document that expresses the final judgment of the dispute examined, i.e. the arbitration award. The various chapters in this section explore the main linguistic, textual and pragmatic features of this textual realization, also comparing the rhetorical features of the specific documents taken into consideration to the principal characteristics of this genre as described in previous studies.

GIULIANA GARZONE examines the features of arbitration awards issued in both Eastern and Western countries, in order to verify whether they differ to any extent in terms of structure or textual/discursive traits. In particular, she investigates Internet domain name dispute resolutions, a field which has become quite popular due to the great increase in the misuse of website names, with frequent recourse to cybersquatting, ← 12 | 13 → domain name hijacking or domain theft. The corpus investigated in this chapter includes awards issued by Western providers (one based in Geneva and the other in Minneapolis) as well as by Asian providers (Chinese and Indian). Garzone’s detailed analysis of their generic structure, discursive organisation and lexical peculiarities highlights an unexpected degree of uniformity in the drafting and organization of texts in macro-structural terms. The reasons for these similarities are found in the coordinating role of the Internet Corporation for Assigned Names and Numbers (a not-for-profit public-benefit corporation based in the U.S.) and in the common background of many arbitrators, most of whom are presumed to have been trained in law schools (mainly in English-speaking countries) adopting a similar approach.

The chapter by MICHELE SALA examines the linguistic, rhetorical and pragmatic features of arbitral awards drafted in English by the Hong Kong International Arbitration Centre (HKIAC), with a specific focus on those resources which are meant to enhance deonticity and authoritativeness, and thus increase the degree of unchallengeability of these pronouncements. Indeed, if arbitrators want their judgments to be recognized as binding, they need to make them sound highly authoritative so that their decisions cannot be considered arbitrary, biased, or partial. Sala’s investigation shows that the conventional expressions to which HKIAC arbitrators usually resort when codifying their decisions succeed in harmonizing these rhetorical constraints, possibly even without the drafters being fully aware of their pragmatic potential.

The last two chapters of the volume focus on arbitration awards written in the Indian context. In the first of these, STEFANIA M. MACI analyses the role of evidentiality in these texts. The purpose of the chapter is to investigate the extent to which knowledge is linguistically expressed by the parties involved in the arbitral procedure in terms of evidence, intended as a source of information. Maci’s analysis shows that evidentials are mainly concentrated in two particular sections of the award: when the arbitrator establishes the facts of the case and when he highlights the motivations for his decision. These are indeed the most important sections of the arbitral award, where the case is reconstructed and where the objective and juridical reasoning path followed by the arbitral panel is explained. It is in these parts that the arbitrator makes ← 13 | 14 → the best use of his argumentative skills as he is aware that the way in which language intersects with the law is of primary relevance here.

In the final chapter, PATRIZIA ANESA focuses on a corpus of Indian awards in order to observe their general characteristics and their linguistic and discursive peculiarities, with the aim to contribute to the identification of areas of concern and potential improvements to be implemented. Although from a macro-structural perspective the awards analyzed here are in line with the rhetorical structure which characterizes international and domestic awards in other countries, the micro-linguistic analysis shows some significant peculiarities. In spite of the fact that awards in general tend to display a relatively high level of formality and linguistic accuracy, this does not always hold true in the awards analyzed. Anesa explains this finding with the inevitable trade-off that exists between time and cost efficiency on the one hand and linguistic precision on the other, with the former aspect being favored in many cases.

3. Closing remarks

In the chapters of this volume, arbitration discourse has been analyzed in various forms of its textualization: not only focusing on normative texts and final awards, but also on its communicative and discursive practices. Moreover, the investigation has been carried out from different viewpoints: not only from a merely linguistic angle, with a focus on the description of the forms and genres commonly used in arbitration contexts, but also from a legal perspective, with the identification of the juridical intent and tools to be adopted in this process. Another complex standpoint that has been adopted is the vast array of social and cultural contexts in which arbitration is practised in Asia, from China to India, from Japan to Singapore, just to mention some of the countries explored.

The topic is so vast that we do not claim to have been comprehensive and offered a complete, definitive account of the multifarious discursive practices that are commonly employed in arbitration ← 14 | 15 → processes in such a wide continent as Asia. Rather, we hope that the chapters in this volume will open up new perspectives, provide subjects for fresh discussion, and stimulate debate among all those scholars and practitioners interested in arbitration discourse and practices, and – more broadly – in the relationship between language and law.


Bhatia, Vijay K. (ed.) 2011. Interdiscursive Colonisation of International Commercial Arbitration Practice. Special issue of World Englishes 30/1.


ISBN (Softcover)
Publication date
2015 (October)
Arbitration Asia Discourse
Bern, Berlin, Bruxelles, Frankfurt am Main, New York, Oxford, Wien, 2015. 332 pp., 9 tables

Biographical notes

Vijay K. Bhatia (Volume editor) Maurizio Gotti (Volume editor)

Vijay K. Bhatia retired as Professor from the Department of English, City University of Hong Kong. His research interests mainly include Critical Genre Analysis, academic and professional discourses, ESP and Professional Communication. Two of his books, Analysing Genre: Language Use in Professional Settings and Worlds of Written Discourse: A Genre-based View, are widely used in genre theory and practice. Maurizio Gotti is Professor of English Language and Translation, Head of the Department of Foreign Languages, Literatures and Communication, and Director of the Research Centre for LSP Research (CERLIS) at the University of Bergamo. His main research areas are the features and origins of specialized discourse.


Title: Arbitration Discourse in Asia