Cultural sensitivities in international construction arbitration.

• Author: Mitchell, Roy S.

The author has often been asked how lawyers from one country can handle construction contract issues in a wide variety of foreign jurisdictions. The three key answers, of course, are that: (1) contract lawyers are particularly fortunate in that the three primary legal systems throughout the world--Common Law, Civil Code, and Islamic Law countries--all have as a common denominator the sanctity of contract; different names are applied to the different approaches used in the various legal systems, and some significant exceptions exist, but the underlying concepts are generally quite similar; (2) construction lawyers are fortunate in that the vast majority of major international construction contracts during the past forty years have been awarded on standard form contract terms, primarily a variation of the ubiquitous FIDIC family of contracts; and (3) dispute resolution on construction contracts has typically been via international arbitration which tends to yield less consistent results as opposed to civil lawsuits which involve the local court systems of many of the 193 national jurisdictions throughout the world.

It would be a grave mistake for international construction lawyers to believe that the above advantages translate into a uniform approach to international construction arbitration that overrides the significant cultural differences which exist in various regions and countries throughout the world. They do not, and the international construction lawyer who fails to recognize these cultural differences will not only encounter unfortunate surprises, he or she may in fact lose cases that were otherwise winnable. It is the purpose of this paper to briefly discuss a few of the cultural differences that may create traps for the unwary in international construction arbitration.

Starting in the United States and working eastward, and with apologies to George Bernard Shaw, American litigators and British barristers are divided by a common language. Perhaps the most shocking thing to an American is that members of the various British Inns of Court ("Inn") are not considered to be partners with each other, but rather a series of individual barristers supported by a common infrastructure. Thus, it is not uncommon to see one of the Panel of Arbitrators coming from the same Inn as opposing counsel. There have been countless court challenges to this system, not only in the UK, but also in France and elsewhere, alleging bias or the appearance of bias such as to disqualify the Panel member from serving.

In addition, British barristers, whether serving as advocates or Panel members, tend to be more formalistic and somewhat less liberal in their approaches to arbitration than their American counterparts. The concept of constructive acceleration, for example, although widely argued and accepted in the United States for more than forty years, still...