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The Discourses of Dispute Resolution

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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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CHIARA DEGANO Indicators of Argumentation in Arbitration Awards: A Diachronic Perspective 189

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CHIARA DEGANO Indicators of Argumentation in Arbitration Awards: A Diachronic Perspective 1. Introduction International commercial arbitration is being increasingly criticized for losing its distinctive character, while resembling litigation more and more closely (Mustill 1997; Nariman 2000; Browner 2007). In particular, what is regretted is the loss of its original drive towards a swift and satisfactory solution for the parties, in line with the needs of the commercial community, in favour of a more legalistic approach. This in turn has been laid at the door of lawyers, who have, it is felt, appropriated the practice of arbitration, transferring their litigative skills and strategies from national courtrooms to the resolution of disputes in arbitral tribunals. From a linguistic point of view, this state of ‘instability’ in the practice of arbitration offers an opportunity to investigate genre varia- tion, on the assumption that changes at the level of practice are likely to produce changes in discourse. Assuming that arbitration and litiga- tion are characterized by different discursive features as a conse- quence of their different macro-functions, this chapter aims to provide some evidence as to whether arbitration awards present elements of hybridization as an effect of the influence of litigation. The scope of this study is restricted to argumentation, a discursive practice central to litigation, by virtue of the need to justify courts’ decisions in rela- tion to existing laws. In order to discover whether such elements of hybridization, can be traced in the text, the chapter analyses an elec- tronic corpus of...

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