LANGUAGE AND CULTURE IN INTERNATIONAL ARBITRATION: THE IMPACT ON PARTIES’ DUE PROCESS RIGHT
Authors: Ornella Guarino
Over the last decades, the significant rise in international commercial transactions has led to the need for a harmonized dispute settlement system that is capable of resolving conflicts among the parties at the international level both quickly and effectively. In particular, this directly relates to the most effective alternative dispute resolution method for cross-border commercial transactions, namely the International Commercial Arbitration. Interestingly enough, the latter allows parties coming from different countries and different legal cultures to settle their dispute without necessarily going through litigation before courts. However, this can have an impact on how the national arbitration laws are drawn up in the various legal systems and on the parties’ expectations on the conduct of the arbitration proceedings.
This article will therefore analyze how the different languages and different legal systems of origin of both parties and arbitrators might lead to misunderstandings – both verbally and in writing – that undermine the precise conduct of the arbitration procedure. Subsequently, a selection of civil law and common law systems (Italy, Germany, Spain, United Kingdom, United States) since the adoption of the UNCITRAL Model Law on International Commercial Arbitration in 1985 are taken into analysis in order to demonstrate how language plays a key role not only in the international arbitration discourse and practice, but also in impacting the parties’ due process right, which would be infringed if they were not able to properly understand and follow suit with the arbitration procedure.
Keywords: International commercial arbitration - ADR - Language - Culture - Due process - UNCITRAL model law