Harmonising Cultural Differences in International Arbitration: The Role of Parties’ Reasonable Expectations and Counsel’s Ethical Rules

Abstract

You can take your English car to France, but that doesn’t mean that you can drive on the left-hand side.
The essence of this analogy guided a Stockholm Chamber of Commerce (‘SCC’) Tribunal’s treatment of a binding party agreement to apply certain international rules of evidence in a Stockholm-seated arbitration. As a result, the Tribunal qualified those international rules and the parties’ agreement by reference to Swedish domestic rules of procedure – much to the dissatisfaction of one of the parties. The Tribunal’s approach in that case raises an interesting question of how to address and resolve cultural differences in arbitral proceedings, and the role of parties’ expectations in guiding arbitral proceedings.
In this chapter, we discuss the role of culture in international arbitration, particularly in the context of issues of procedure and ethics. With respect to procedural issues, we conclude that recent attempts by the arbitration community to harness the benefit of cultural divergences are laudable, but they have not been without challenges, and we suggest that there is space for further consideration of how culture ought properly to influence procedural matters, and what role the parties’ reasonable expectations should play in striking the right balance.