The Language of International Arbitration

• Author: Fernando Dias Simões
• DOI: http://doi.org/10.1002/crq.21191
• Published date: 01 September 2017
• Date: 01 September 2017

C R Q, vol. 35, no. 1, Fall 2017 89

© 2017 Association for Confl ict Resolution and Wiley Periodicals, Inc.

Published online in Wiley Online Library (wileyonlinelibrary.com) • DOI: 10.1002/crq.21191

The Language of International Arbitration

Fernando Dias Simões

Settling international disputes is a cultural and legal challenge.  e fi rst

barrier that needs to be overcome is that of language. Parties, lawyers,

and arbitrators frequently speak diff erent languages or do not have the

same level of profi ciency in the same idiom. Determining what language

or languages shall be used in international arbitration is decisive on three

dimensions: party equality, the composition of the arbitral tribunal, and

the interaction with national courts.  is article examines several tools

that disputing parties can adopt in order to overcome the problems stem-

ming from linguistic diversity in international arbitration .

A rbitration has become the most popular mechanism for resolving

international disputes. It is now the foremost technique for resolv-

ing disputes between states, individuals, and corporations in almost every

aspect of international trade, commerce, and investment (Blackaby et al.

2009 ). Practically all international agreements contain arbitration clauses

in what is now considered the normal method for resolving international

business disputes (Berger 1993 ).  is prominence can be explained by the

increased globalization of business and expansion of international trade,

which have led to a change in the way international business disputes are

solved (McLean 2009 ).

Settling international disputes is a cultural and legal challenge.  e fi rst

barrier that needs to be overcome is language. Scholars have stressed that

international arbitration is a transcultural venture and that the need to

bridge language diff erences is part of the process.  e arbitral tribunal is

frequently faced with parties of diff erent nationalities. If those parties do

not have the same native language, eff ective communication becomes an

issue. Frequently disputes result not from the actions of the parties them-

selves but from the careless or ambiguous use of words (Fraser 1981 ).

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Many controversies in international arbitration derive from poor lan-

guage and are maintained by naive misconceptions about language (Kar-

rer 2004 ). Furthermore, law is a kind of language on its own.  e legal

idiom is a technical language in the sense that it is for experts only—that

is, jurists (Pozzo 2012 ). Legal language operates as a functional variant

of natural language, with its own domain of use and particular linguistic

rules.  is language is used in specifi c social roles like pleading and claim-

ing. Although legal language is based on ordinary language, it is used for

special purposes, leading to the existence of legal jargon (Mattila 2006 ).

In the work of comparative lawyers, language is essential to the process of

acquiring knowledge of foreign law.

Consequently, law and language are cultural phenomena that must be

studied, taking into account time and context (Pozzo 2012 ).  e language

used in arbitration proceedings is also a highly sophisticated and specifi c

legal language. It is not suffi cient to have basic knowledge to understand

this technical idiom. One needs to manage a specialized vocabulary so

as to be able to understand the arguments of the other party, arbitrators,

and witnesses and express oneself without serious communication issues.

 e party who is using his or her own native language has an advantage

over those who have learned it as a second tongue (Gomez-Palacio 2009 ).

Speaking and writing another language suffi ciently well for the purpose of

arbitration proceedings is demanding. Not surprisingly, language-related

problems have been explicitly raised in an increasing number of disputes

in both arbitral and judicial contexts (Dellinger 2010 ).

Settling international disputes is a cultural, legal, and linguistic

challenge, as disputing parties, lawyers, and arbitrators frequently speak

diff erent languages or do not have the same level of profi ciency in the

same idiom. Parties are free to agree on the language or languages to be

used in the arbitral proceedings. In the absence of such an agreement,

the arbitral tribunal will have to determine the language or languages to

be used in the proceedings.

 is article examines several tools that disputing parties can adopt in order

to overcome the problems of linguistic diversity in international arbitration.

The Advantages of International Arbitration

International arbitration is a specially established mechanism for the fi nal

and binding determination of disputes concerning a contractual or other