[Subject code: LXGA 6183]

INTERNATIONAL EXAMINING THE

ARBITRATION ROLE OF

AND

MEDIATION

IN

EAST

ASIA

DOMESTIC

LEGAL

CULTURE

AND

GLOBALIZATION ON SHAPING EAST ASIAN ARBITRATION

THESIS REVIEW

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UP EVEREST | Subject code: LXGA 6183

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1. INTRODUCTION This Thesis, entitled International Arbitration and Mediation in East Asia : Examining the Role of Domestic Legal Culture and Globalization on Sha ing East Asian Arbitration is a Doctorate Thesis by Shahla Farzaneh Maghzi Ali, submitted at the University of alifornia, !er"eley, for her Doctorate Degree of #hiloso$hy in %uris$rudence and Social #olicy in &''() The Thesis, totalling &(* $ages is divided into seven cha$ters) ha$ter + is titled ,evie- of literature and Methods, ha$ter & is titled !ac"ground and .egal Frame-or" of Arbitration in

/ast and the 0est, ha$ter 1 is titled The /mergence of Arbitral 2nstitutions, ha$ter * is titled A survey of Arbitration and Settlement in 2nternational !usiness Dis$utes in Asia, ha$ter 3 is titled ase statistics 4 ase 7

Studies on onciliated Arbitration A-ards, ha$ter 5 is titled 2ntervie- Findings 6 7armonization and 2nformed Divergence in /ast Asian Arbitral Systems and finally ha$ter ( is titled onclusion) 2. DISCUSSION ABOUT THE THESIS The research topic is the sub8ect matter addressed by the author in her thesis using a broad brush a$$roach+) The research to$ic s$ea"s for itself in that this research is on ho- domestic legal culture and globalization has sha$ed arbitration in /ast Asia) The fact that the author has begun her dissertation by citing Anne Marie Slaughter9s boo", A !e" #orld $rder%, -hich describes the $roliferation of international arbitration in recent years, and a study by :ai$ing #eng -hich found that a strong sense of collective identity in the Asian culture im$acted $references for mediation sho-s that the author understands that stating the research $roblems is the first ste$1 in the research $rocess) 0e can also see that the author a$$reciates the im$ortance of identifying the purpose of her research -hen she starts off the introduction by saying; &his dissertation examines ho" ra id transformations at the global le'el in the last t"o decades ha'e challenged the nature of international legal ractice(* The $ur$ose of the research is also "no-n as the $ur$ose statement) The $ur$ose statement can be li"ened to a rudder of a shi$ because it steers the research in the correct direction3) The author has identified three research questions5 for her thesis; Does diversity of culture and -orldvie-, in $articular, values and attitudes held is /ast Asia reflecting $references for conciliated outcomes, translate into differing understanding and e<$ectations of international arbitration $rocedure= 2f so, ho- do these differing e<$ectations manifest themselves in international arbitration $ractice= > Are global economic and legal forces simultaneously e<erting a harmonizing influence on arbitrator9s e<$ectations through conventions such as the U? 2T,A. Model Arbitration and onciliation ,ules= > and 2f diversity and harmonization simultaneously influence the $ractice of international arbitration, -hat suggestions do $ractitioners have for increasing the efficacy of the international arbitral system= The author has dedicated a s$ecific section of her research to discuss the etho!o"o#$ used() She has correctly identified her research design as em$loying com$limentary @ualitative and @uantitative methodsA) The author has very -isely concluded that em$loying any one research method alone can lead to biasness, hence the mi<ed method a$$roach) 2n the @ualitative $art -hich entails the o$en ended intervie-s, -e see the author being very cautious as to not to im$ose a $articular notion or definition of arbitration, but rather lets the

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res$ondents define it as they sa- it) The author gives a detailed account of the format B, content+', ra$$ort++ and even the challenges+& faced -hile conducting the intervie-) For the @uantitative $art, the author conducted a survey modelled after one by hristian !uhringCUhle+1) The survey @uestionnaires -ere distributed to &3' $ractitioners all over the -orld and contained a @uantitative $art -hich as"s for yesCno res$onses and numerical res$onses) 0e can see that the outcome of the survey -as rather encouraging as the author -as able to come to a conclusion -hich ans-ers the second research @uestion) The author found that global economic and legal forces are simultaneously e<erting a harmonizing influence on the legal as$ects of the arbitration $ractice through conventions such as the U? onvention on ontracts for the 2nternational Sale of Doods and the U? Model .a- on 2nternational ommercial Arbitration+*) %. DISCUSSION ON THE &ITERATURE RE'IE( A literature revie- is a summary of documents that describe the $ast and current state of information on the to$ic of one9s research study+3) As such, it has to be inCde$th and u$ to date) The author has dedicated ha$ter + of her thesis to literature revie-) The author has divided the revie- based on four ma8or bodies of literature namely, scholarshi$ on legal $luralism and legal trans$lant theories, the internalization of .a-, crossCborder arbitration and commercial norms in la- and economic develo$ment) The author has also revie-ed literature $ertaining to legal culture and decision ma"ing) 2n terms of legal $luralism and internalization of legal $ractice, the author e<$lains that in an attem$t to address the conce$tual challenges brought about by globalization, legal $luralism scholars in the &' th century embar"ed on an effort to describe the diverse conte<ts in -hich t-o or more legal systems coCe<ist in the same social field+5) The author goes on to e<$lain that many scholars -ithin the field have observed that legal $luralism has failed to move beyond a descri$tive model to a dynamic theory+() The author criticizes the literature on legal $luralism and internalization of la- for having failed to address the nature of the interaction bet-een globalization on the one hand and diversity of normative systems on the other+A) 2n terms of legal trans$lant, the author has loo"ed at ho- scholars from areas such as anthro$ology, sociology and la- have contributed to this area+B) The author commends the legal trans$lant and globalization literature for having contributed to a fuller a-areness of the dynamics involved in the e<change of legal systems but at the same time criticizes the literature for not $aying enough attention to ho- multi$le legal cultures simultaneously interact in international arbitration forums&') 2n terms of the norms in la- and economic develo$ment, -hile ac"no-ledging that this body of literature is highly informative and $rovides hel$ful insights into the coe<istence of norms and legal rules in informing mar"et
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behaviour, the author strongly feels that the scholars in this field have not addressed the @uestion of ho- diverse norms em$loyed in resolving transnational commercial dis$utes are reconciled in a crossCcultural conte<t&+) ). CONC&USION The author9s criticisms in the literature revie- may have addressed the ga$s in the selected areas to a certain e<tent) 7o-ever, it is observed that the author does not $rovide any e<$lanation as to -hy she criticized the literature in the manner that she did and ho- she arrived at the conclusions she has made) The lac" of such e<$lanation and reasoning -ill cause a reader to lose hisEher train of thought because the reader -ill be trying to understand -hy and ho- the author arrived at such conclusions) 0e also found the -ay in -hich the literature revie- -as divided to be rather confusing) This is because, in the introduction to the literature revie-, the author $rovided four divisions but -hen she -ent on to elaborate on the literature, there -as five divisions) This left us, the readers very confused as to ho- the author came u$ -ith the fifth head) These criticisms aside, the author has done a good 8ob in thoroughly citing all the literature that -as revie-ed and there is also a very clear division of cha$ters in her thesis) The arrangement of cha$ters has allo-ed the author9s ideas to flo- very -ell and shothe lin" bet-een one cha$ter and another) Moreover, there is no overla$$ing bet-een the cha$ters) Fn the -hole, the author has $resented her thesis in a very systematic manner and has adhered as close as $ossible to the ste$s in a research $rocess)

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