Barricades and Checkered Flags: An Empirical Examination of the Perceptions of Roadblocks and Facilitators of Settlement among Arbitration Practitioners in East Asia and the West

Abstract

Contemporary research on roadblocks and facilitators of settlement has thus far been framed by standard economic modeling and distributive bargaining theories. Each of these frameworks provides helpful insights into those elements that assist or hinder the settlement process. However, each of these models has thus far not examined how particular roadblocks and facilitators of settlement operate in the context of international commercial arbitration proceedings from a comparative cross-cultural perspective. How diverse regions approach roadblocks and facilitators of settlement in the context of the integration of global markets is a new arena for research and practice. To date, most research on international arbitration has focused exclusively on Western models of arbitration as practiced in Europe and North America. While such studies accurately reflected the geographic foci of international arbitration practice in the mid- 20th century, in recent years, the number of international arbitrations conducted in East Asia has grown steadily and on par with growth in Westem regions. This article presents a cross-cultural examination of how international arbitrators in East Asian and Western countries view the particular factors that help or hinder the settlement process in international arbitration. The result of a 115-person survey and 64 follow up interviews shed light on the underlying cultural attitudes and approaches to perceived roadblocks and facilitators of settlement in international arbitration. The findings indicate that arbitration practitioner's perceptions of the factors influencing the achievement of settlement as well as specific barriers to settlement demonstrate a high degree of convergence across regions. At the same time, regional and socio-economic distinctions are reflected in varying arbitrator perceptions regarding arbitrator proclivity towards making the first move towards settlement in arbitration, the degree of focus on past facts and legal rights as opposed to exploring creative solutions and orientation toward adversarial procedures.