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The Discourses of Dispute Resolution

Series:

Vijay K. Bhatia, Christopher N. Candlin and Maurizio Gotti

This volume presents some of the findings from a project on various aspects of Alternative Dispute Resolution (ADR), including conciliation, mediation, and arbitration. To study the discursive practices of ADR today, an international initiative has been undertaken by a group of specialists in discourse analysis, law, and arbitration from more than twenty countries. The chapters in this volume draw on discourse-based data (narrative, documentary and interactional) to investigate the extent to which the ‘integrity’ of ADR principles is maintained in practice, and to what extent there is an increasing level of influence from litigative processes and procedures. The primary evidence for such practices comes from textual and discourse-based studies, ethnographic observations, and narratives of experience on the part of experts in the field, as well as on the part of some of the major corporate stakeholders drawn from commercial sectors.

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STEFANIA M.MACI The Modus Operandi of Litigation in Arbitration 69

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STEFANIA M. MACI* The Modus Operandi of Litigation in Arbitration 1. Introduction Due to the rapid expansion and growth of international trade, the institution of arbitration has been largely and consistently incorporated into the commercial systems of most countries. Arbitration is, there- fore, a method of amicable settlement of disputes in international trade settings, particularly when parties belong to different legal traditions. Parties are free to choose the way in which they want their dispute resolved. The choice of whether to resolve international commercial disputes through legal jurisdiction or arbitration depends on the type of agreements the parties have signed in the contract, which is gene- rally expressed through the arbitral clause, i.e., an agreement within an international agreement (Seriki 2006). Indeed, as indicated by the Ita- lian Code of Civil Procedure (Article 808), “The parties may establish in their contract or in a separate document that disputes arising out of the contract may be decided by arbitrators, provided such disputes are made subject to an arbitration agreement”.1 Although the agreement is essentially commercial, the resolution of the dispute has a legal effect: “Except in those cases covered by Article 825, as from the date of its * The research on which this chapter is based is part of an international research project entitled International Commercial Arbitration Practices: A Discourse Analytical Study (http://www.english.cityu.edu.hk/arbitration/), headed by prof. Vijay Bhatia of the City University of Hong Kong. It also contributes to the National Research Programme Tension and Change in Domain-specific Genres...

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