Legal Studies Research Paper Series

Research Paper No. 2013-26

Increasing Legalism in International

Commercial Arbitration: A New Theory
of Causes, A New Approach to Cures

S.I. Strong

7 WORLD ARBITRATION AND MEDIATION REVIEW 117

(2013)

This paper can be downloaded without charge from the Social Sciences
Research Network Electronic Paper Collection at:
http://ssrn.com/abstract=2366124

Electronic copy available at: http://ssrn.com/abstract=2366124

Increasing Legalism in International
Commercial Arbitration:
A New Theory of Causes,
A New Approach to Cures
S.I. Strong

I. INTRODUCTION

One of the biggest complaints to arise in recent years relates

to the increasing legalism of international commercial arbitration.
To some extent, the issue may be one of perception, since the past
always seems simpler than the present.1 However, those who
have practiced in the field for several decades have expressed
concern about the rising number of excessive disclosure requests,
inappropriate motion practice, and ancillary litigation attempts.
The common assumption is that the field has changed, and not
necessarily for the better.

Critics and reformers have pointed their fingers in a variety of

directions. One popular theory places the blame on U.S. lawyers
who have imported an entrepreneurial business model and
never-say-die litigation culture into arbitration without
understanding the special attributes of international commercial
arbitration.2 Another explanation is that the breakdown of the
1 See WILLIAM W. PARK, ARBITRATION OF INTERNATIONAL BUSINESS DISPUTES 4 (2012)
(discussing the alleged “golden age” of arbitration). Notably, however, parties
have been complaining about increasing legalism in international commercial
arbitration since at least the early 1990s. See P.G. Lim, Institutional Arbitration
in Asia – The Experience of the Kuala Lumpur Regional Centre for Arbitration,
[1993] SING. J. LEGAL STUD. 656, IV.8.
2See Roger P. Alford, The American Influence on International Arbitration, 19
OHIO ST. J. DISP. RESOL. 69, 69 (2003); Eric Bergsten, The Americanization of
International Arbitration, 18 PACE INT’L L. REV. 289, 294, 301 (2006); Lucy Reed
& Jonathan Sutcliffe, The “Americanization” of International Arbitration?, 16
MEALEY’S INT’L ARB. REP. 36 (2001); Steven Seidenberg, International Arbitration
Loses Its Grip: Are U.S. Lawyers to Blame?, 96 A.B.A. J. 50, 54 (Apr. 2010); see
also Robert A. Kagan, Do Lawyers Cause Adversarial Legalism – A Preliminary
Inquiry, 19 LAW & SOC. INQUIRY 1 (1994) (considering the rise of legalism outside
the arbitral context).

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concept of a “firm for life” has fostered an increasingly

competitive work environment as partners and increasingly
young associates leave established practices and vie for clients for
newly created boutique firms.

Although these hypotheses may be comforting (blaming

newcomers and outsiders means that we do not need to examine
our own conscience or behavior too closely), there is no way to
test their accuracy without the help of a good sociologist.
However, it may be possible to explain trends toward increasing
legalism in international commercial arbitration without having
to move outside legal circles. For example, complaints about
increasing legalism in international commercial arbitration began
to arise at about the same time that the underlying transactions
moved away from simple, bilateral relationships. While
synchronicity does not provide evidence of causality, the timing
appears just a bit too fortuitous to be ignored.

Furthermore, some of the changes that have occurred in

arbitration law over the last twenty-five years may be responsible
for the increase in certain types of legalistic practices. Again, it is
impossible to establish a causal connection simply on the basis of
a temporal overlap, but the issue bears further investigation.

This Article therefore considers these two possible

explanations for increasing legalism in international commercial
arbitration in order to ascertain how best to address any
practices that are deemed inappropriate. While it is impossible to
return to a simpler legal and commercial environment, it may be
that a better understanding of the forces underlying increased
legalism will allow for the creation of more appropriate and
effective countermeasures.

II. THE TIMES, THEY ARE A’CHANGING

A. The Facts

Once upon a time, international transactions were relatively

simple, involving only two parties and a single contract. Although

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2013] INCREASING LEGALISM IN INT’L COMMERCIAL ARBITRATION 119

these sorts of relationships still exist, multiparty and

multicontract transactions have become much more common.3

The diversity of the types of multiparty and multicontract

relationships is staggering and almost defies analysis.
Nevertheless, commentators have identified several different sorts
of contractual matrices in the context of debates about the
propriety of consolidated proceedings. Thus, certain distinctions
can be made between single contract multiparty relationships,
multicontract multiparty relationships and multicontract bilateral
relationships.4 Further distinctions can be made within the
multicontract, multiparty setting, since some of those relationships
 such as those in the construction or insurance/reinsurance realm
 can best be described as forming a vertical string, whereas others
 such as those relating to a société coopérative  may be more
appropriately visualized in a hub-and-spoke arrangement.5

These sorts of jurisprudential distinctions can be useful on a

number of levels. For example, these kinds of theoretical models
can anticipate the likelihood of success of a particular type of
procedural request, in this case, consolidation. However, these
sorts of analyses are also useful in identifying which disputes are
more likely to give rise to highly legalistic procedures. For
example, disputes arising out of multicontract, multiparty
relationships are more likely to lead to increased requests for
disclosure, motion practice and ancillary litigation than disputes
arising out of multicontract, bilateral relationships.6

Research concerning the propriety of consolidated proceedings

also suggests that increased legalism does not arise as a result of

3These relationships are addressed most cogently and comprehensively by

Bernard Hanotiau. See BERNARD HANOTIAU, COMPLEX ARBITRATIONS: MULTIPARTY,
MULTICONTRACT, MULTI-ISSUE AND CLASS ACTIONS (2005).
4See id. at 101; S.I. STRONG, CLASS, MASS AND COLLECTIVE ARBITRATION IN NATIONAL
AND INTERNATIONAL LAW ¶¶ 3.34-3.36 (2013) [hereinafter STRONG, CLASS]; Fritz
Nicklisch, Multi-Party Arbitration and Dispute Resolution in Major Industrial
Projects, 11 J. INT’L ARB. 57, 59-60, 71 (2004); Martin Platte, When Should an
Arbitrator Join Cases?, 18 ARB. INT’L 67, nn.18-20 (2002).
5 See STRONG, CLASS, supra note 4, at ¶¶ 3.34-3.46.
6 See infra notes 20-34 and accompanying text.
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extra-contractual factors such as the nationality of counsel.7

Instead, the likelihood of procedural complexity appears to be tied
to the nature of the underlying transaction.

As useful as these sorts of analyses can be in the abstract, fact-

based inquiries are also helpful. Interestingly, even a brief survey
of contemporary commercial practice suggests that the days of
simple, bilateral contracts are long gone, at least in the
international realm. For example, one commentator noted that

[i]n completing an international transaction, at least five

principal contracts or agreements need to be made,
namely, the contract of sale ([l]egal relationships between
buyer and seller of goods), the contract of carriage ([l]egal
relationships between shipper and carrier of the goods),
the contract of insurance ([a]rrangements for the
insurance of those goods sold and carried), agreement of
payment ([f]inancial arrangements for international
transaction) and agreement of dispute settlement
([m]ethod for dispute resolution).8

Although each of the individual agreements in this example

appear to be bilateral in nature, it is also possible for multilateral
agreements to be embedded somewhere within the larger
transactional matrix. Furthermore, disputes may arise that
implicate more than one contractual relationship.9

Because parties to a multilateral dispute may not share the

same interests,10 counsel may engage in a high degree of tactical
jousting so as to establish a procedural regime that not only

7However, nationality may come into play with respect to the way courts,
arbitrators and counsel visualize arbitration. See HANOTIAU, supra note 3, at 5-
6; see also infra notes 20-34 and accompanying text.
8Zhen Jing, Insurer Beware! – Circumstances in Which the Insurer May Lose His
Subrogation Rights in Marine Insurance, 43 J. MAR. L. & COM. 129, 130 n.4 (2012).
9See Mark Kantor, Dear Corporate Partner, 21 MEALEY’S INT’L ARB. REP. 1, 10
(Mar. 2006).
10See Carolyn B. Lamm & Jocelyn A. Aqua, Defining the Party – Who is a Proper
Party in an International Arbitration Before the American Arbitration Association
and Other International Institutions?, 34 GEO. WASH. INT’L L. REV. 711, 711-12
(2003) (noting parties to a multilateral dispute may have very diverse interests).
2013] INCREASING LEGALISM IN INT’L COMMERCIAL ARBITRATION 121

complies with the terms of the relevant dispute resolution

clause(s) but that favors their client’s position. Notably, these
sorts of tactual maneuvers only seem objectionable when they are
initiated by other parties; clients seldom, if ever, refuse to allow
their lawyers to engage in behavior that is seen as asserting or
protecting the client’s rights under the contract, even if the
actions could be perceived as legalistic in nature.

At one time, these sorts of complex transactional matrices

were believed to exist primarily  if not exclusively  in the
construction11 and insurance industries.12 However, similar types
of interlocking contractual arrangements now exist in a variety of
fields, including international project finance,13 capital markets,14
securities,15 energy16 and derivatives.17 Multifaceted contractual
relationships are also common in shareholder18 and joint venture
11See Charles Molineaux, Moving Toward a Construction Lex Mercatoria: A Lex
Constructionis, 14 ARB. INT’L 55, 57 (1997); John Linarelli, Analytical
Jurisprudence and the Concept of Commercial Law, 114 PENN ST. L. REV. 119,
168-77 (2009) (discussing the International Federation of Consulting
Engineers (FIDIC) standard terms).
12See Dennis A. Cammarano, Impacts of the Supreme Court Decision in Regal-
Beloit: Exporting Import Litigation, 85 TUL. L. REV. 1207, 1214 (2011)
(discussing insurance and reinsurance arbitration involving the Bermuda
Form); Chris Harris, Liability Insurance in International Arbitration: The
Bermuda Form, 21 ARB. INT’L 249, 249 (2005) (book review).
13See KANTOR, supra note 9, at 2; Rachel Bowen, Note, Walking the Talk: The
Effectiveness of Environmental Commitments Made by Multilateral Development
Banks, 22 GEO. INT’L ENVTL. L. REV. 731, 746 (2010).
14See Jonathan R. Rod, Current Trends in Financing International Resource
Projects, in International Resources Law: Today’s Oil, Gas and Mining Projects,
44A ROCKY MTN. MIN. L. SPEC. INST. III.A.2 (Mar. 1997).
15See Peter B. Oh, Tracing, 80 TUL. L. REV. 849, 869-70 (2006) (discussing a
series of interlocking brokerage contracts involving beneficial owners of
securities, brokers, depositories and perhaps other intermediaries).
16See Dewey J. Gonsoulin, Jr., et al., Representing Clients in International Energy
Projects, 50 HOUS. LAW. 10, 11 (2012).
17See Dan Wielsch, Global Law’s Toolbox: Private Regulation by Standards, 60
AM. J. COMP. L. 1075, 1086-87 (2012) (discussing arbitration involving the
International Swaps and Derivatives Association (ISDA) master agreement).
18 See T.M. Lennox, Transfer of Obligations, 2 MELB. J. INT’L L. 209, 214 (2001).
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agreements.19 Indeed, few  if any  areas of law appear immune

from the creep of contractual complexity.

B. The Law

Understanding the nature of the underlying transaction is only

the first step of this analysis. Next, it is necessary to demonstrate
a link between contractual complexity and legalistic procedures
in arbitration. Although a number of possible connections may
exist, three come immediately to mind.

1. Non-signatory Issues
First, transactions involving interlocking contracts reflect an
increased likelihood of issues relating to non-signatories.
Requests relating to non-signatories can be made in various fora
 i.e., in arbitration or in court  and can be initiated by various
parties  i.e., an existing party may seek to bring a non-signatory
into an ongoing arbitration or a non-signatory may seek to join
that proceeding. Regardless of the procedural posture, the result
is increased motion practice and/or ancillary litigation.

Interestingly, the issue of non-signatories may help explain

why some observers believe that U.S. lawyers are responsible for
increased legalism in international commercial arbitration. The
United States has one of the most liberal attitudes in the world
regarding the participation of non-signatories in arbitration,20
which means that parties seeking to bring a non-signatory into a
particular proceeding will do their best to bring that action under
U.S. state or federal law. However, “there is little considered
analysis focusing on the law applicable to determining the parties
to an arbitration agreement.”21 Since confusion breeds litigation,
it is perhaps safe to say that if a dispute arising under a

19See Larry A. DiMatteo, Strategic Contracting: Contract Law as a Source of

Competitive Advantage, 47 AM. BUS. L. J. 727, 756-57 (2010); Jane Knowler &
Charles Rickett, The Fiduciary Duties of Joint Venture Parties – When Do They
Arise and What Do They Comprise?, 42 VICTORIA U. WELLINGTON L. REV. 117, II
(2011).
20See GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION 1142-1205 (2009);
see also Thomson-CSF, SA v. Am. Arb. Ass’n, 64 F.3d 773, 776 (2d Cir. 1995).
21 See BORN, supra note 20, at 1211-12.
2013] INCREASING LEGALISM IN INT’L COMMERCIAL ARBITRATION 123

multicontract transaction implicates U.S. law in some manner,

either as a matter of substance, procedure or policy,22 increased
motion practice and/or ancillary litigation may ensue.

Parties seeking to bring non-signatories into an arbitration

may also find the United States to be a particularly useful forum in
which to bring an action. The Federal Arbitration Act (FAA) gives
U.S. courts the somewhat unusual power to compel arbitration
anywhere in the world,23 which suggests that parties seeking to
enforce what they believe is a valid arbitration agreement may
bring that action in the United States if at all possible.24 Although
U.S.-qualified lawyers would be involved in these sorts of
procedures by necessity, it cannot be said that U.S. lawyers are
transferring a U.S.-style litigation culture into arbitration.
Instead, the opportunity for increased legalism exists as a matter
of substantive and procedural law and arises by virtue of the
contractual complexity of the underlying transaction.

2. Regulatory Issues
Contemporary arbitration may also involve increased legalism
because of the subject matter of the underlying dispute. Although
complex multiparty, multicontract transactions can arise in a
wide variety of fields, many of these relationships involve matters
that are subject to state regulation.25 Since regulatory concerns
are often subject to the exclusive jurisdiction of the national
courts, parties might find themselves arguing about the
applicability of an otherwise valid arbitration agreement. Parties
might also find themselves embroiled in debates about the

22Application of the substantive or procedural law of the United States could

arise as a matter of choice (either the parties’ or the arbitral tribunals’) or as a
matter of law (if the law is of a mandatory nature). The policies of the United
States may apply by virtue of the underlying procedural or substantive law or
as result of prudent anticipation of the second look doctrine. See Mitsubishi
Motors Corp. v. Soler Chrylser-Plymouth, Inc., 473 U.S. 614, 637 n.19 (1985).
23See 9 U.S.C. §§ 4, 206, 303 (2013); BORN, supra note 20, at 1014; S.I. STRONG,
INTERNATIONAL COMMERCIAL ARBITRATION: A GUIDE FOR U.S. JUDGES 37-41 (2012),
available at http://www.fjc.gov [hereinafter STRONG, GUIDE].
24U.S. courts still need to have personal jurisdiction over the parties. See
STRONG, GUIDE, supra note 23, at 35-36.
25 See supra notes 11-19 and accompanying text.
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possible bifurcation of certain issues that must be heard in court.

Other disagreements could arise with respect to the possible need
for mandatory disclosures in the face of an arbitral confidentiality
provision. All of these features could increase the amount of
litigation ancillary to arbitration.

Regulatory concerns are often addressed under the rubric of

arbitrability  in the international sense,26 which adds another
interesting twist to the analysis. Because the United States’ view
of arbitrability is one of the broadest in the world,27 parties to
complex arbitrations could be inclined to adopt tactics similar to
those used in cases involving non-signatories and invoke U.S. law
whenever possible simply to obtain the benefits of the United
States’ pro-arbitration regime.28 Of course, this technique would
typically require the assistance of U.S.-trained counsel, which
would again perpetuate the belief that U.S. lawyers are the cause
of increased legalism in arbitral procedures.

3. Choice of Law and the Need for Documentary Evidence

Finally, increased legalism may be more likely to arise in
matters involving interconnected contracts because of issues
relating to choice of law and the increased need for documentary
evidence. Parties in simple contract disputes arising out of
bilateral relationships seldom need much in the way of disclosure,
since the parties already have most of the necessary
documentation in their own files. Furthermore, any missing
information can usually be resolved through negative inferences.

26This Article uses the terms “arbitrable” and “arbitrability” in their

international sense to describe which disputes can be heard in arbitration and
which are reserved to the exclusive purview of the courts. See Stefan Michael
Kröll, The “Arbitrability” of Disputes Arising From Commercial Representation, in
ARBITRABILITY: INTERNATIONAL AND COMPARATIVE PERSPECTIVES 317, ¶ 16-7
(Loukas A. Mistelis & Stavros L. Brekoulakis eds., 2009).
27See BORN, supra note 20, at 718-85, 837. U.S. courts have also defined the
term “commercial” very broadly, thereby bringing a number of disputes (such
as those involving consumers) into arbitration. See STRONG, GUIDE, supra note
23, at 29.
28 See supra notes 20-24 and accompanying text.
2013] INCREASING LEGALISM IN INT’L COMMERCIAL ARBITRATION 125

Disputes involving interlocking contracts are nowhere near as

straightforward. Not only are the types of claims typically much
more complicated as a matter of both fact and law, but the parties
may not have all of the relevant evidence in their possession,
since they were not involved in certain parts of the overall
transaction.29 This type of situation is apt to generate an
increased number of requests for disclosure and could even
provide the catalyst for a party to seek to bring a non-signatory
into an arbitration so as to increase the likelihood of obtaining
some amount of pre-hearing disclosure from that entity  in most
jurisdictions, the ability to obtain pre-hearing disclosure from a
third party is very limited.30

Problems associated with the lack of evidence can be

exacerbated under certain types of state law. The fewest
problems arise in proceedings governed by laws enacted by a civil
law jurisdiction, since those legal systems have created various
mechanisms (such as negative inferences and shifting of the
burden of proof) to avoid any difficulties associated with minimal
pre-trial disclosure or discovery in court.31 Although arbitration
has incorporated some of these devices  most notably, the use of
negative inferences  as a matter of practice, a dispute that is
governed by the substantive law of a common law jurisdiction
will not be able to benefit from more legalistic procedures such as
shifting of the burden of proof.

Although concerns about the availability of evidence in

arbitration have been resolved to some extent by the incorporation
of a rule of limited disclosure, disputes involving multicontract,
multiparty transactions may nevertheless experience certain
problems if the matter is governed by the substantive law of a

29 See supra note 8 and accompanying text.

30For example, although the FAA indicates that an arbitral tribunal may
compel a third party to attend an arbitral hearing in the United States and
bring certain necessary documents, U.S. courts are split as to whether pre-
hearing disclosure from a third party may be ordered. See 9 U.S.C. § 7 (2013);
STRONG, GUIDE, supra note 23, at 52.
31See Jalal El Ahdab & Amal Bouchenaki, Discovery in International Arbitration:
A Foreign Creature for Civil Lawyers?, in ARBITRATION ADVOCACY IN CHANGING
TIMES, XV ICCA CONG. SER. (2010 Rio) 65, 78-80 (2011).
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common law jurisdiction. Common law countries have structured

their legal systems on the expectation of pre-trial discovery, a
feature that not only permeates the procedural law but also the
substantive law.32 Therefore, advocates in complex arbitration are
in many ways correct, as a matter of fact and of institutional design,
when they argue that they cannot prove their case without access
to the other parties’ documents.

The situation can be further exacerbated by other cultural

phenomena. For example, many common law jurisdictions
operate on the assumption that judges need to have sufficient
information to understand the whole dispute, whereas civil law
jurisdictions only require their judges to have sufficient
information to justify a decision.33 While arbitrators are in some
ways functionally distinguishable from judges,34 an arbitrator
coming from the common law tradition might hold certain
unconscious views about the scope of evidence that is necessary
to decide a case and might therefore be inclined to grant more
expansive requests for information than an arbitrator from a civil
law jurisdiction. This difference in approach is likely to be
particularly noticeable in matters involving something other than
a simple, bilateral contract dispute.

Again, this phenomenon demonstrates why U.S. lawyers are so

often charged with increasing the amount of legalism in
international commercial arbitration. While counsel may not
justify their requests for pre-hearing production of documents by
reference to the type of contractual relationship or the nature of
the governing law, those features may very well affect the number
and scope of disclosure requests. Thus, complex multiparty,
multicontract disputes are more likely to lead to increased

32See Jack H. Friedenthal, A Divided Supreme Court Adopts Discovery

Amendments to the Federal Rules of Civil Procedure, 69 CAL. L. REV. 806, 818-19
(1981) (arguing that the availability of pre-trial discovery was essential to “the
evolution of substantive law”); Arthur R. Miller, Simplified Pleading, Meaningful
Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal
Procedure, 88 N.Y.U. L. REV. 286, 356 (2013).
33 See EL AHDAB & BOUCHENAKI, supra note 31, at 73.
34See PARK, supra note 1, at 21; Robert G. Bone, Party Rulemaking: Making
Procedural Rules Through Party Choice, 90 TEX. L. REV. 1329, 1386-88 (2012).
2013] INCREASING LEGALISM IN INT’L COMMERCIAL ARBITRATION 127

legalism, particularly when U.S. law governs as a substantive

matter.

III. CONCLUSION

One of the biggest concerns facing international commercial

arbitration today is the increasing legalism of the procedure.
However, this development may in some ways be inevitable,
given the increasing complexity of the underlying transactions.
This type of fundamental change in commercial reality cannot be
reversed any more than certain advances in arbitration law 
including those relating to non-signatories and arbitrability  can
be undone.

Recognizing the realities of contemporary commercial

practice also takes the pressure off of U.S. lawyers who are often
blamed for the increasing legalism of international commercial
arbitration. As this Article has shown, legalistic practices do not
arise because U.S. lawyers misunderstand arbitral procedures or
simply wish to import the U.S. litigation ethos into a new venue.
Instead, increased legalism arises largely as a result of the
intricacies of modern international transactions.

However, there does seem to be at least some connection

between increasing legalism and the choice of U.S. law. This
conclusion is of course potentially problematic for U.S. lawyers
seeking to obtain work in this field, since the easiest way to
decrease legalism in international commercial arbitration is to
minimize the role of U.S. law in the underlying transaction.
Although some issues – such as those relating to public regulation
– are of a mandatory nature and cannot be eliminated through the
efforts of the parties, a well-drafted dispute resolution clause that
included well-considered choice of law provisions  including the
law governing the substantive dispute, the law concerning
procedural issues and the law relating to the interpretation and
validity of the arbitration agreement itself  could go a long way
towards avoiding some types of legalistic practices.

However, the duty (and ability) to address excessive legalism

in international commercial arbitration should not be put on
individual parties alone. Instead, the arbitral community can also
play a role in helping parties and arbitrators achieve a better
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understanding of how these sorts of interrelated contracts

operate, both in general and in specific industries. For example, it
may be useful to abandon the myth of the simple bilateral
contract and embrace the complexity of modern commercial law,
since that will allow arbitral institutions and other interested
parties to begin to build adequate procedural models based on
empirical realities.35 Indeed, it very well may be that a one-size-
fits-all approach to complex commercial disputes is not as
effective as a system with specialized rules narrowly tailored for
use in certain types of disputes.36

Increased reflection on the reasons why legalism arises also

suggests that certain proposed methods of improving the dispute
resolution process – most notably, mediation – may not achieve
the desired results. For example, this Article has taken the view
that the most common cause of increased legalism in arbitration
is the rise of multiparty, multicontract transactions. However,
mediation does not appear to be the optimal means of resolving
disputes involving these sorts of situations. While it is certainly
true that mediation could usefully avoid some of the problems
associated with multicontract arbitration  such as concerns
involving non-signatories and inconsistent dispute resolution
clauses, multiparty mediation is inherently difficult. Indeed, some
mediations, “such as those involving large-scale, multiparty
environmental disputes, may last for a year or more,”37 thereby
negating the promise of mediation as a quick, easy and
inexpensive solution to international legal disputes.38

35Empirical studies have long suggested “[t]he need to improve the framework
for multiparty, multicontract and multiclaim disputes.” Loukas Mistelis,
International Arbitration – Corporate Attitudes and Practices – 12 Perceptions
Tested: Myths, Data and Analytical Research Report, 15 AM. REV. INT’L ARB. 525,
586 (2004).
36For example, the Panel of Recognised Institutional Market Experts in Finance
(P.R.I.M.E. Finance) specializes in the arbitration of complex financial disputes,
including those arising under the ISDA master agreement. See P.R.I.M.E.
Finance, http://www.primefinancedisputes.org/.
37See David A. Hoffman, Mediation, Multiple Minds, and Managing the
Negotiation Within, 16 HARV. NEGOT. L. REV. 297, 302 (2011).

Of course, complexity need not be an obstacle to a successful mediation. See

38

Mark J. Heley, Mediation of Construction Cases Using “Blind Negotiations”: Can

2013] INCREASING LEGALISM IN INT’L COMMERCIAL ARBITRATION 129

Indeed, it appears as if the current interest in mediation is

based on the same myth that has plagued arbitration, namely the
belief that most disputes in the international realm arise out of
simple, bilateral contracts.39 Obtaining a better understanding of
modern commercial practice may help parties appreciate the
limits inherent in mediation and offset the belief that mediation
can provide a panacea to the various problems facing
international commercial arbitration.

Increasing legalism of international commercial arbitration is

a legitimate concern as both a practical and legal matter.
However, the only way to adequately address the problem is to
understand its various causes. This Article has suggested that
legalistic practices do not arise as a result of the national mindset
of a particular set of lawyers or of a lack of understanding about
what constitutes proper arbitral etiquette. Instead, difficulties
arise as a result of the nature of the underlying transaction and
certain developments in arbitration law. Once that reality is
understood, the international arbitral community can work to
reduce excessive legalism in a productive and useful manner.

S.I. STRONG is Associate Professor of Law at

University of Missouri, School of Law. She
specializes in international dispute resolution and
comparative law, with a particular emphasis on
international commercial arbitration and large-
scale (class and collective) suits. She has taught at
the Universities of Cambridge and Oxford in the
United Kingdom as well as Georgetown Law
Center and the University of Missouri in the
United States and is also Senior Fellow at the Center for the Study
of Dispute Resolution. Professor Strong is an experienced
practitioner, having acted as Counsel at Baker & McKenzie after
working as a dual-qualified (U.S.-England) lawyer/solicitor in the

Providing Less Information Generate Better Results?, 34 WM. MITCHELL L. REV.

273, 274 (2007).
39 Although most arbitrations may be bilateral, that does not mean that issues
with third parties or non-signatories have not arisen; it may simply mean that
efforts to bring those parties into the proceeding have been unsuccessful.
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New York and London offices of Weil, Gotshal & Manges. Professor
Strong has published numerous award-winning books and articles
in Europe and the Americas, including Research and Practice in
International Commercial Arbitration: Sources and Strategies
(2009) and Class, Mass and Collective Arbitration in National and
International Law (2013), both from Oxford University Press, as
well as International Commercial Arbitration: A Guide for U.S.
Judges (2012) from the Federal Judicial Center. Professor Strong’s
scholarly work has also been cited as authority to the U.S. Supreme
Court and in ICSID awards. Professor Strong, who holds a Ph.D. in
law from the University of Cambridge, a D.Phil. from the University
of Oxford, a J.D. from Duke University, an M.P.W. from the
University of Southern California and a B.A. from the University of
California, Davis, sits as an arbitrator on a variety of commercial
matters.