The Rise of a Third Generation of Arbitrators?: Fifteen Years after Dezalay and Garth

Schultz, Thomas; Kovacs, Robert

doi:10.1093/arbitration/28.2.161

Cited by 11 publications

(5 citation statements)

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“…The theory about the mission of arbitrators, then, if it intends to be descriptive and not prescriptive, may have to be adapted.' 54 In light of the expectations parties attach to their arbitrator selection, it is doubtful whether Schultz and Kovac's findings really justify an adaption of the arbitrator's juridical mandate to the extent that arbitrators are ' only responsible for the product, with no mandate to do the work themselves'. A core reason for parties' choice of one arbitrator over another is that they can predict what product they will get.…”

Section: Consequences For the Arbitrator's Juridical Mandatementioning

confidence: 99%

Secretaries to Arbitral Tribunals: Judicial Assistants Rooted in Party Autonomy

Jensen

2020

International Journal for Court Administration

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International arbitration is deeply rooted in party autonomy. Parties are free to decide whether they want to resolve their disputes by arbitration at all; how the arbitral proceedings should be conducted; and who their adjudicators should be. While parties to state court litigation may be able to designate a competent court (by way of a choice of court agreement) this freedom usually does not extend to the identity of the individuals who decide their cases. By contrast, it is one of the hallmarks of international arbitration that parties may determine the identity of their arbitrators. It is the proposition of this article that the exercise of this right results in an intuitu personae-choice of arbitrators and that this choice defines the degree to which international arbitrators may resort to assistance. In international arbitration, such assistance is usually referred to as the secretary of the arbitral tribunal. The article analyzes this position of a tribunal secretary, compares it to judicial assistants and suggests that the appropriate use of tribunal secretaries is defined by the parties' express agreements and implicit expectations regarding the arbitral process.

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Section: Consequences For the Arbitrator's Juridical Mandatementioning

confidence: 99%

Secretaries to Arbitral Tribunals: Judicial Assistants Rooted in Party Autonomy

Jensen

2020

International Journal for Court Administration

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“…First, this study adds reputation in the category of arbitrator characteristics, reflecting the imperfect competition market of international arbitrators (D'Silva, 2014;Puig, 2014). Second, this study replaces education with practical/legal expertise, as most of the literature includes expertise in the selection criteria of international arbitrator (Landolt, 2012;Mistelis, 2004;Schultz and Kovacs, 2012). Third, this study contributes to arbitrator acceptability literature by examining the moderating effect of perceived costs of arbitration on arbitrator acceptability.…”

Section: Model and Hypothesesmentioning

confidence: 99%

“…Furthermore, some commentators argue that cost is not considered in the choice of modern arbitration (Drahozal, 2000;Gluck, 2012), and some research provides survey findings that cost of arbitrator is not a meaningful international arbitrator selection criterion (Schultz and Kovacs, 2012). This paper assumes that disputants have two alternatives of dispute resolution, namely, litigation and arbitration, and that they compare the perceived cost of arbitration with the perceived cost of litigation for their choice of dispute resolution forum.…”

Section: The Relative Perceived Cost Of Arbitrationmentioning

confidence: 99%

“…Now, the time is ripe to examine the "acceptability" of the international arbitrator, as arbitration has remained the dominant type of dispute resolution in international commercial disputes (Dezalay and Garth, 1996;Weigand, 2009). To date, research on the selection of international arbitrators has not investigated arbitrator acceptability on either a theoretical basis or empirical basis, although a couple of works suggest practical international arbitrator selection criteria (Bond, 1991;Bishop and Reed, 1998;Lopez, 2014), and others provide survey results on arbitrator selection (Mistelis, 2004;Schultz and Kovacs, 2012).…”

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Arbitrator acceptability in international commercial arbitration

Chung

2016

IJCMA

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Purpose The purpose of this paper is to identify the determinants of arbitrator acceptability and investigate whether the perceived costs of arbitration moderate the relationship between arbitrator acceptability and arbitrator characteristics in international commercial arbitration. Design/methodology/approach A two-stage analytic process is used to test the dimensionality, reliability and validity of each construct and then the proposed hypotheses. Findings The findings show that the five constructs of arbitrator characteristics – reputation, practical expertise, legal expertise, experience and procedural justice – statistically significantly explain arbitrator acceptability. Moreover, perceived cost of arbitration moderates the relationship between arbitrator acceptability and arbitrator characteristics. However, the moderating effect of perceived costs of arbitration is not equal across characteristics. Research limitations/implications Knowledge regarding potential moderators of the strength of the indicators of arbitrator acceptability will be useful to future researchers in determining which variables to study in arbitrator selection research. Practical implications Useful guidelines in the selection of an international arbitrator are proposed. Originality/value This study contributes to arbitrator acceptability literature through the suggestion of a hypothesized model of arbitrator acceptability with auxiliary hypothesis of reputation in international contexts. In addition, this study investigates the moderating role of perceived cost of arbitration on the relationship between arbitrator acceptability and arbitrator characteristics.

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“…Others have sought to update the conclusions of Dezalay and Garth in light of additional data. Schultz and Kovacs claim, on the basis of a survey of lawyers and arbitrators, that a “third generation of arbitrators” (the “Managers”) has now emerged (Schultz and Kovacs ). Arbitrators themselves have adopted terms employed by Dezalay and Garth, referring to what they do as “practicing virtue” (Caron et al ).…”

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confidence: 99%

Competition and Cooperation in International Commercial Arbitration: The Birth of a Transnational Legal Profession

Grisel¹

2017

Law Soc Rev

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This paper revisits the sociology of international commercial arbitration on the basis of unexploited archives and data. This material casts new light on the competition between “grand old men” and “young technocrats” in the 1980s and 1990s, a theme that has structured the analysis of international commercial arbitration since the pioneering work of Yves Dezalay and Bryant G. Garth (Dealing in Virtue). In contrast, the data show that the crucial transformative period actually took place between the 1950s and 1970s, when a relatively well‐defined group of individuals emerged as the leading arbitrators at the International Chamber of Commerce. These individuals— the “secant marginals”—succeeded in constructing a cooperative interface (rather than competition) between otherwise separate legal systems and professions. In doing so, they created the conditions necessary for the emergence of a new transnational legal profession. At a more general level, the article proposes an alternative narrative of globalization, wherein actors operating at the intersection of various systems, create new arenas of governance on the basis of inter‐system cooperation.

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The Rise of a Third Generation of Arbitrators?: Fifteen Years after Dezalay and Garth

Abstract: A B S T R A C T Fifteen years ago, sociologist Yves Dezalay and lawyer Bryant

Cited by 11 publications

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Secretaries to Arbitral Tribunals: Judicial Assistants Rooted in Party Autonomy

Secretaries to Arbitral Tribunals: Judicial Assistants Rooted in Party Autonomy

Arbitrator acceptability in international commercial arbitration

Competition and Cooperation in International Commercial Arbitration: The Birth of a Transnational Legal Profession

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