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«1. Introduction Recent years have seen an unprecedented dismantling of socio-cultural, disciplinary, and national barriers especially in the context ...»

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Vijay K. Bhatia* & Christopher N. Candlin*

Analysing Arbitration Laws across Legal Systems


In this paper, the national Indian and Chinese statutes on arbitration are compared

with the UNCITRAL Model Law. After a presentation of the GILD-MMC project,

focus is especially on textual aspects indicating attitudes towards the relation between

the administrative powers and the parties in commercial arbitration. Thus, looking

at the features all-inclusiveness, information load, information spread, legislative style and transparency significant differences are found and related to the different communicative purposes (overall model vs. specific national rules), the different legal traditions (common law vs. civil law) and the different political systems (westernised market economy vs. socialist market economy).

1. Introduction Recent years have seen an unprecedented dismantling of socio-cultural, disciplinary, and national barriers especially in the context of co- operation and collaboration in international trade and business. The creation of massive international free trade zones and the opening up of major political economies have accelerated moves towards intense competition to capture international markets on the one hand, and the merger of corporations to form huge multinational conglomerates on the other. The increase in such trends towards a globalisation of socio-cultural, business and communication issues has seen law fast assuming an international perspective rather than retaining its purely jurisdictional concerns. The creation of a common European market has demonstrated, for example, the need for a common European legal * Vijay K. Bhatia City University of Hong Kong * Christopher N. Candlin Macquarie University, Australia/Open University, UK Hermes, Journal of Linguistics no. 32-2004 14 framework as an important priority. This task was much more complex than that of creating a new legislative framework, because this common framework was meant to be interpreted within the contexts of a diversity of individual legal systems and languages of the member countries of Western Europe which have their own strong linguistic, socio-political, cultural and legal identities.

More recently, in the context of the return of Hong Kong to the People’s Republic of China, and the creation of Hong Kong as a Special Administrative Region of the People’s Republic of China, (HKSAR), under the ‘One Country Two Systems’ principle, the importance of inter- preting one set of laws in the context of the other system has raised a number of interesting issues. In the changed context there, three languages and two legal systems are interacting with each other, high- lighting a number of new problems in the interpretation of rules and regulations and in the translation of legal intentions, not only from one language to another, but also from one legal system to the other (Candlin and Bhatia 1998). In a span of about six years, we have witnessed several cases where sections of the Basic Law, which was enacted by the National People’s Congress, Peoples Republic of China, as a mini constitution for Hong Kong Special Administrative Region (HKSAR), have been construed and interpreted rather differently, often taking contradictory positions by the parties concerned. The underlying issues in relation to statutory interpretation in many of these cases could either be traced back to the influence of two different drafting systems, which may include differences in the languages in use (Chinese and English), between legal systems, or in relation to other socio-cultural as well as political factors (Ghai 1997).

In legal linguistics, however, there has been very little attention paid to issues that cut across languages, legal systems, or which accommodate such socio-cultural and political differences. In contexts like these, one is often confronted with a variety of questions, some of which may include,

–  –  –

• To what extent will the scope be constrained by the legal system in which it is constructed and interpreted?

• To what extent will established socio-cultural conventions and political ideologies have any significant influence on the construction and interpretation of the laws in question?

• To what extent will the instruments of legislation be constrained by the linguistic resources available in the language in which it is written?

Issues like these are crucial for the construction, interpretation, and use of legislative discourse across languages, language varieties, sociopolitical, cultural and economic boundaries and, most of all, across different legal systems. They are also extremely relevant when one translates legal expressions from one language or legal system into another. Although there has been some work reported in some of the areas identified here (Engberg 1997; Fredrickson 1995; Lang 1989;

Roebuck, Wang, and Srivastava 1995; Trosborg 1991, 1997), specific issues raised have largely remained under-investigated. In this paper, we would like to present some of the findings based on an international effort to address these issues in legal linguistics concerning the use of legal language across legal systems, cultures and other socio-political factors. The overall objective is to investigate the ‘generic integrity’ (Bhatia 1993, 1994, 2000, and forthcoming) of legislative documents as they are constructed, interpreted and used in multilingual and multicultural legal contexts, primarily incorporating the following stages.

• Linguistic analyses of a corpora of International Arbitration Laws from several countries, addressing such issues as degree of qualification, specification of scope, issues of closed versus open-endedness, and other matters concerned with complex contingency, and their comparison with The UNCITRAL Model Law, 1985 (UNML).

• Grounded account of the drafting and interpretative practices within specific contexts, which attempts to further explore the issues arising from analyses under (1) by focusing on a set of critical and relevant sites of engagement, incorporating specific moments of application 16 of the laws under investigation, especially where certain aspects of these two laws are invoked during the negotiation of justice.

• Explanation of issues identified and discussed under 1 and 2 above, by reference to socio-cultural, economic, political, linguistic and legal factors based on the background studies of the legal systems of these two countries, and also on the expert reactions and commentaries by legal specialists, both from the academy and the legal practice.

This project1, entitled “Generic integrity in legal discourse in multilingual and multicultural contexts”, has more than ten international teams participating in the analysis of international arbitration laws from the perspective of a number of different countries, languages, legal systems, cultures and socio-political ideologies. The research has a threefold orientation: a contribution to basic knowledge of legal language seen from an international perspective, an underpinning for international policy and commercial practice, and grounding for legal practice and legal practitioner training. We hope that such a contrastive/comparative multilingual typology of key instances and key textualisations, supported by explanatory commentary, will serve as a very valuable aid to the translator, to the legislator and the lawyer, and, ultimately, to the parties entering into contracts of such a sort.

In this paper we take some sections of International Arbitration Laws from two different contexts to illustrate some of the important and interesting issues which seem to be crucial in the construction, interpretation and application of such laws in international contexts. The texts come from The Arbitration Law of the People’s Republic of China 1994 (PRCAL) and The Arbitration and Conciliation Ordinance (1996) of India (ACOI). We focus on these two rather diverse contexts, i.e., the Republic of India (India) and the People’s Republic of China (PRC) because these two countries represent two very different socio-political traditions, legal systems, and constitutional mechanisms. They also use two very different languages, though they share to varying degrees the use of English as a second language in legal contexts. In particular,

http://gild.mmc.cityu.edu.hk/1 17

we address issues of degree of qualification, specification of scope, transparency and open-endedness, and other matters concerned with complex contingency, and make comparisons with The UNCITRAL Model Law, 1985 (UNML). However, due to the limitations of space, we illustrate only the first of the three procedures mentioned above.

(The other procedures are illustrated in several other publications listed on the project website.)

2. General observations The UNCITRAL Model Law (UNML) serves as a blueprint for the PRCAL and ACOI. It is interesting to note that the UNML has no specific section dealing with the enforcement of foreign awards. The UNML is presumed by its nature and origin to be for the general guidance of all countries, and hence does not have to specifically deal with the enforcement of foreign awards. Each country will need a special provision which can best protect its interest when entering into a business relationship with parties from other counties. Here one can safely say that the UNML is more general in terms of its applicability and coverage. It serves as a general guide for other countries to follow, whereas the PRCAL and the ACOI are more specific and detailed adaptations of the Model Law, keeping in mind local constraints.

Further observations in terms of specificities indicate that PRCAL has a section on the Arbitration Commission and Arbitration Association, whereas Part I of the ACOI has two additional chapters, one on ‘Appeals’ (Chapter IX), the other called ‘Miscellaneous’ (Chapter X).

Similarly, the ACOI appears much more detailed than either the UNML or the PRCAL. It contains Part II, III and IV, dealing with domestic matters, which surprisingly have no mention in the PRCAL.

Furthermore, ACOI adopts a number of definitions from UNML but, at the same time, adds a number of others not mentioned in UNML. In the same way, ACOI covers conciliation, whereas neither the UNML nor the PRCAL incorporates this aspect.

Although in general terms the ACOI seems to have been drafted more closely in keeping with UNML in its first eight chapters, especially in terms of the chapter titles and the drafting of articles in similar wordings, the ACOI, and to some extent PRCAL, seem also to be more specific and more precise than UNML in a number of ways. The ACOI 18 and the PRCAL both have a section on ‘Supplementary Articles’ (which is not included in the ML). The ACOI has a section (Part II) on the enforcement of certain foreign awards. The PRCAL also has a section to deal with foreign concerns (Chapter VII). For a more detailed comparison in terms of the substance of these versions, please refer to Appendix 1.

To sum up, it is clear that the UNML provides a broad framework, but includes also a good deal of detailed definition of key terms. It sets out the means by which individual states may construct their own arbitration law in the light of local circumstances but makes it clear that arbitration is bound by its own semantics – a point which UNML clearly states. Interestingly, it sees as necessary to define core terms like “commercial”, definitions that are absent in both PRCAL and ACOI. It defines the legal authority and the precise means by which written communications, for example, are to be sent and received. It sets arbitration within the general scope of law in the states in question and presumes that arbitration law will be harmonised with those local laws. It supposes that there will be local constraints governing the application of any conditions. It may thus be of interest to examine why UNML provides considerable detail on some matters and not on others. For example, arbitration is not explicitly linked to conciliation.

It emphasises international arbitration explicitly.

It is equally clear that PRCAL differs considerably from UNML in not specifying details. It sets its principles against particular economic conditions (socialist market economy) and offers only broad brush statements of principle or scope which invite further definition – see phrases like economic matters, or administrative disputes, administrative organs. There is little attempt at definition of terms here and certainly not as regards usual legal qualifications, as in UNML (and in ACOI).

The text is short and plainly written, but this masks vaguenesses. For example, in Article 2 we may ask what are “other organizations”?

Article 4 is of interest in that it appears to state in plain English what it means but leaves its key issues unclear: for example, “how do litigants choose to settle”, “how does a litigant apply for arbitration”, “ what or who is the “arbitration commission” and what are its powers? No details are provided on methods and means surrounding arbitration processes. It is also interesting to note that PRCAL does not mention conciliation, as does the ACOI in connection with arbitration.


3. Specific focus Although some of the general observations and conclusions here are based on the three versions of the international arbitration laws (the UNML, the PRCAL, and the ACOI), for the purpose of illustration of detailed analysis, the paper will focus on the following three sections.

1. Arbitration agreement (PRCAL Articles 4 and 16, UNML Article 7, and ACOI Article 7) (see Appendix One)

2. Appointment of arbitrators (PRCAL Articles 31-33, ACOI Article 11, and UNML Article 11) (see Appendix Two) and

3. Grounds for challenge (PRCAL Article 34, UNML Article 12, and ACOI Article 12) (see Appendix Three).

We examine here some of the surface level features of these chosen sections.

3.1. Surface-level features Word length One of the most strikingly obvious differences in the three versions of the same law is the sheer length of the sections. PRCAL contains just 150 words, whereas UNML contains 380, and ACOI 663. It will be interesting to investigate the amount of information and the processes of textualisation used in the three versions.

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