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The Discourses of Dispute Resolution


Edited By 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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CELINA FRADE Linguistic Pathologies in Arbitration Clauses 145


CELINA FRADE Linguistic Pathologies in Arbitration Clauses Unclear writing is one of the oldest causes of litigation (Mellinkoff 1982: 61) 1. Introduction International arbitration, as an alternative form of dispute resolution, is now firmly established worldwide involving multilegal and multilingual parties. Different from litigation, the parties expressly agree to settle any controversy arisen out of contracts out of court and invest arbitrators with the power to decide upon it. Among the nume- rous reasons to arbitrate rather than litigate, Woodbridge and Mason (1999: 260-1) point out privacy, finality, a superior quality tribunal, decreased costs and party participation in shaping procedures. Arbitration agreements are composed of a series of interrelated genres which interact with each other resulting in what Bazerman (1994) calls a ‘system of genres’, ranging from the drafting of a valid and enforceable arbitration clause to the final award issued by the arbitral tribunal. The pressure for harmonization in international arbi- tration procedures has resulted in an attempt to standardize the dis- course of arbitration by means of a large variety and number of multi- lingual ready-made model types of arbitration contracts and clauses designed to be used by the parties as a frame of reference. These model forms, mostly available in websites of well-established institu- tions and organizations, are usually simple, concise and all-inclusive and not concerned with specific characteristics and difficulties of each arbitration. Celina Frade 146 As the basis of arbitration, the arbitration clause requires more consideration and attention on the part of drafters and translators....

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