Legal Discourse across Cultures and Systems
Publication Year: 2007
Published by: Hong Kong University Press, HKU
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This volume investigates the linguistic and discoursal properties of legal documents used in international commercial arbitration contexts, focusing on their construction, interpretation, and use in international arbitration practice. The aim is to provide a better understanding of legal language seen from an international perspective, in particular with a focus on cross...
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1. Concepts, Contexts and Procedures in Arbitration Discourse
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Although legal language has long been the focus of attention for legal philosophers and sociologists (Austin, 1962; Mellinkoff, 1963; Searle, 1965, Allen, 1957; Atkinson and Drew, 1979; to mention only a few), its attraction for linguists and discourse analysts has been of relatively recent origin. Legal language started attracting somewhat adverse publicity in...
Perspectives and Issues
2. Mixing Legal Cultures in International Arbitration: The Iran-United States Claims Tribunal
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At an early stage of the work of the Tribunal, the late Richard B. Lillich characterized the Iran-United States Claims Tribunal as the most significant body in arbitral history.1 Now that the Tribunal, after more than 20 years of its existence, seems to be coming towards the end of its work, with only a few cases left to decide or to settle, it may be the right moment to...
3. Hybrid Dispute Processing in Japan: Linking Arbitration with Conciliation
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There are mixed responses with respect to the existing practice of international arbitration in Japan, in which the arbitrator virtually dictates the conciliation method. American lawyers largely criticised it (Ragan, 1991). Nevertheless, there is also favourable interpretation contending that the practice enables more flexible solutions for individual cases...
4. Confidentiality in Arbitrations
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Confidentiality, like privacy, has long been perceived as one of the prime advantages of arbitration2 and the very reason why parties opt for arbitration as opposed to public Court proceedings to resolve disputes. Until the recent decade or so, confidentiality was taken for granted and widely assumed as the fundamental feature of arbitration in the...
5. International Commercial Arbitration in India: A Study of Discursive Practices
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This chapter undertakes a critical discourse analysis of arbitration proceedings in International Commercial Arbitration in India in the context of globalisation. The study demonstrates the differences in the discourses of Commercial Arbitration proceedings in India, whether domestic or international, when influenced by (a) the adversarial legal...
Comparative Analysis and Interpretation
6. Interpretation across Legal Systems and Cultures: A Critical Perspective
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Recent trends in global trade and commerce have made international commercial arbitration an increasingly important area of development. With this new development it has become more likely than ever before that laws written in one specific context are being interpreted in another or several other contexts at the same time. In the context of such...
7. Vagueness and Indeterminacy in Law
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Everyday experience with language in practice shows that it is not always clear what a sender means when he or she employs language for communication. This is especially true in the area of law.2 Stated informally, the main reason for this lack of clarity is that it is not possible...
8. Powers of the Court in the Malaysian Arbitration Act
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This chapter focuses on the general powers of the High Court in the Malaysian Arbitration Act to ascertain similarities and differences that exist between the UNCITRAL Model Law of 1985 and the Arbitration Act of Malaysia of 1952 (“the Act”), respectively. It also examines some of the linguistic features found in the relevant sections of the Act. References...
9. Discourse Systems in English Arbitration Awards
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This chapter provides a descriptive and critical analysis of a recent specimen of an English arbitral award relative to consumer disputes which I obtained from the Chartered Institute of Arbitrators in London. The analysis will be twofold: firstly, I will examine the drafting format of the final award based on the Arbitration Scheme for the Travel Industry Rules,...
10. Rhetorical Strategies in Arbitration Law
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The two primary functions of law are the ordering of human relations and the restoration of social order when it breaks down. With regard to the latter, we are concerned with the way in which language is used to maintain justice in cases of conflict, either between citizens in the case of civil law or between the individual and the state in the case of criminal...
11. Cultural Constraints on Arbitration Discourse
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In recent years, the dismantling of cultural, disciplinary and national barriers, especially in the context of co-operation and collaboration in international trade, has accelerated moves towards the globalisation of socio-cultural, business and communication issues. In this context, law is fast assuming an international perspective rather than remaining a...
Applications and Implications
12. Arbitration in Sport
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The purpose of the study is to analyse from a cross cultural perspective some of the discursive practices of legal practitioners in the field of arbitration in sports. It will focus on some of the relevant rhetorical and textual features of the legal discourse exhibited by the International Code of Arbitration for Sport, issued by the International Council for Arbitration...
13. Implications of Legal Globalisation for Brazilian Legal Practice
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Most commonly related to economics and the agenda of the so-called neoliberalism,1 the phenomenon of globalisation is in fact a part of more complex structural and strategic processes. It subsumes other subsystems — such as politics, education and law — and their actors acting globally on different spacio-time scales (Jessop 1999 and 2000)....
14. Translation in International Arbitration
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Globalization and harmonization are dominant trends in international arbitration today. As a result of the globalization of international trade, the number of international disputes submitted to arbitration has increased tremendously in recent decades with actors from all continents speaking a multitude of languages. Thanks to the worldwide acceptance of...
15. Translating Terminology in Arbitration Discourse
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Legal language has for decades been subject to the attention of both lawyers and linguists. While the lawyers have concentrated on how to express, and subsequently identify, legal information so that law may be applied, the linguists have focused on purely linguistic aspects, such as means of expressing a tone of normativity, or of serving frequently...
Page Count: 356
Illustrations: 3 b/w illus
Publication Year: 2007