PROF.SSA GIULIA ADRIANA PENNISI
AREA RICERCA E TRASFERIMENTO TECNOLOGICO SETTORE DOTTORATI E CONTRATTI PER LA RICERCA
U. O. DOTTORATI DI RICERCA
System Dynamics – Dinamica dei Sistemi
Dipartimento di Scienze Politiche e delle Relazioni Internazionali (DEMS) L-LIN/12 Lingua e Traduzione Lingua Inglese
LEGAL, LINGUISTIC, AND CULTURAL ASPECTS IN INTERNATIONAL COMMERCIAL ARBITRATION DISCOURSE:
A CORPUS-BASED STUDY OF ARBITRAL AWARDS
LA DOTTORESSA IL COORDINATORE
XXXXXXX XXXXXXX XXXX. XXXXXXXXX XXXXXXX
LA TUTOR
PROF.SSA XXXXXX XXXXXXX XXXXXXX
CICLO XXXVI
ANNO CONSEGUIMENTO TITOLO 2024
TABLE OF CONTENTS
1. INTRODUCTION 1
1.1 Background… 1
1.2 Research questions, goals and enabling objectives 8
1.3 Outline of chapters 10
2. SPECIALIZED LANGUAGES 12
2.1 Introducing specialized languages 12
2.1.1 ESP development and application… 19
2.2 General features of specialized discourse: overview 25
2.2.1 Lexical features of specialized discourse 29
2.2.2 Syntactic features of specialized discourse 30
2.2.3 Textual features of specialized discourse 33
2.3 Legal language 37
2.4 Legal English and its main features 44
2.4.1 Lexical features of legal English… 50
2.4.1.1 Latinisms 50
2.4.1.2 Terms of French/Xxxxxx origin… 50
2.4.1.3 Archaisms 51
2.4.1.4 Repetition of specific words and expressions 51
2.4.1.5 Performative verbs 52
2.4.1.6 Modal auxiliary shall 53
2.4.1.7 Technical terms 54
2.4.2 Syntactic features of legal English… 55
2.4.2.1 Binomials and multinomials 55
2.4.2.2 Long and complex sentences 55
2.4.2.3 Passive constructions 56
2.4.2.4 Impersonal constructions 57
2.4.2.5 Nominalizations 57
2.4.2.6 Complex prepositions 58
2.5 Legal genres 60
2.5.1 Arbitral awards 64
3. INTERNATIONAL COMMERCIAL ARBITRATION: THE CONTEXT 70
3.1 Main features of commercial arbitration 70
3.2 A brief overview of the historical background of commercial arbitration…….76
3.3 Evolution of the international commercial arbitration legal framework in the 19th and 20th centuries 80
3.4 Current international commercial arbitration frameworks in common law and civil law systems 87
3.4.1 Xxxxxx Xxxxxxx 00
0.0.0 Xxxxxx Xxxxxx 95
3.4.3 Singapore 99
3.4.4 Hong Kong… 101
3.4.5 France 104
3.4.6 Switzerland… 106
3.4.7 Italy… 109
3.4.8 Conclusive remarks 111
4. CORPUS DESCRIPTION AND RESEARCH METHODOLOGY 113
4.1 Corpus description… 113
4.1.1 Data collection… 113
4.1.2 Data preparation… 121
4.1.3 Data description: the Main Corpus composition… 121
4.1.3.1 AAA Subcorpus 126
4.1.3.2 LCIA Subcorpus 128
4.1.3.3 SAC Subcorpus 130
4.1.3.4 CAM Subcorpus 131
4.1.3.5 HKIAC Subcorpus 133
4.1.3.6 ICC Subcorpus 135
4.1.3.7 SIAC Subcorpus 136
4.2 Preliminary methodological considerations 139
4.2.1 Corpus linguistics 142
4.2.2 Software for corpus linguistics 144
4.3 Methodological framework… 143
4.4 Methodology and data retrieval algorithms 146
4.4.1 Binomials and multinomials 147
4.4.2 Archaisms, Latinisms, and terms of French/Xxxxxx origin… 148
4.4.3 Nominalizations 149
4.4.4 Complex prepositions 149
4.4.5 Modal auxiliaries 150
4.4.6 Sentence length and complexity… 151
4.4.7 Impersonal structures 152
4.4.8 Passive constructions 153
5. LINGUISTIC, CULTURAL, AND LEGAL ASPECTS IN ARBITRAL AWARDS: LEXICAL AND SYNTACTIC FEATURES IN THE MAIN CORPUS 154
5.1 Binomials and multinomials 157
5.1.1 Binomials and multinomials in the Main Corpus 158
5.1.2 Qualitative analysis of binomials 163
5.1.3 Results 167
5.2 Archaisms, Latinisms and terms of French/Xxxxxx origin… 168
5.2.1 Archaisms 169
5.2.2 Foreign words and expressions 176
5.3 Nominalizations 182
5.4 Complex prepositions 188
5.4.1 Cause/purpose spectrum 192
5.4.2 Means/agentive spectrum 195
5.4.3 Concession… 198
5.4.4 Respect 202
5.4.5 Exception and addition 206
5.4.6 Condition… 208
5.4.7 Signaling textual authority 211
5.4.8 Results 222
5.5 Modal auxiliaries 223
5.5.1 Shall 225
5.5.2 Would 230
5.6 Sentence length and complexity… 233
5.7 Impersonal structures 239
5.8 Passive constructions 244
6. RESULTS AND CONCLUSIONS 247
6.1 Results concerning the lexical and syntactic choices indicating discrepancies between civil law and common law arbitral awards 247
6.2 Conclusions 257
6.3 Limitations and ideas for future research… 258
7. BIBLIOGRAPHY 259
LIST OF TABLES
Chapter 4
Table 4.1: Main Corpus description: the general statistics.
Table 4.2: The representation of the Main Corpus: time frame, arbitral institutions and number of texts included per year.
Table 4.3: AAA Subcorpus. Table 4.4: LCIA Subcorpus. Table 4.5: SAC Subcorpus. Table 4.6: CAM Subcorpus. Table 4.7: HKIAC Subcorpus. Table 4.8: ICC Subcorpus.
Table 4.9: SIAC Subcorpus.
Chapter 5
Table 5.1: Multinomials in the SIAC Subcorpus.
Table 5.2: Absolute frequency of binomials in the subcorpora of the Main Corpus.
Table 5.3: Relative frequencies of binomial morphological structures in the Main Corpus. Table 5.4: Relative frequencies of the twenty most frequent binomials within common law subcorpora normalized to 100,00 words.
Table 5.5: Relative frequencies of the twenty most frequent binomials within civil law subcorpora normalized to 100,00 words.
Table 5.6: Relative frequencies of archaic compound adverbs in the Main Corpus.
Table 5.7: Relative frequencies of formulaic words and expressions regarded as archaisms by proponents of the Plain English movement in the Main Corpus.
Table 5.8: Relative frequencies of Latinisms in the Main Corpus.
Table 5.9: Relative frequencies of loanwords from French in the Main Corpus.
Table 5.10: Relative frequencies of nominalizations in the Main Corpus.
Table 5.11: Relative frequencies of the eight identified groups of meanings expressed by complex prepositions in the Main Corpus.
Table 5.12: Relative frequencies of complex prepositions of the means cause/purpose spectrum in the Main Corpus.
Table 5.13: Relative frequencies of complex prepositions of the means/agentive spectrum in the Main Corpus.
Table 5.14: Relative frequencies of complex prepositions expressing concession in the Main Corpus.
Table 5.15: Relative frequencies of complex prepositions denoting respect in the Main Corpus.
Table 5.16: Relative frequencies of complex prepositions expressing exception and addition in the Main Corpus.
Table 5.17: Relative frequencies of complex prepositions expressing condition in the Main Corpus.
Table 5.18: Relative frequencies of complex prepositions signaling textual authority in the Main Corpus.
Table 5.19: Relatives frequencies of references to source authority/evidence in the Main Corpus.
Table 5.20: Relative frequencies of complex prepositions expressing non-adherence to legal sources in the Main Corpus.
Table 5.21: Relative frequencies of modals and semi-modals in the Main Corpus.
Table 5.22: Criteria to identify shall in the Main Corpus.
Table 5.23: Relative frequencies of shall within the Main Corpus.
Table 5.24: Average sentence length in common law and civil law subcorpora.
Table 5.25: Distribution of sentence types within the ArbDHP-2 and ArbDHP-3 Moves of common law subcorpora.
Table 5.26: Distribution of sentence types within the ArbDHP-2 and ArbDHP-3 Moves of civil law subcorpora.
Table 5.27: Relative frequencies of impersonal structures across common law and civil law subcorpora.
Table 5.28: Relative frequencies of passive constructions across common law and civil law subcorpora.
Chapter 6
Table 6.1: Results concerning all lexical and syntactic features analyzed in this research.
LIST OF FIGURES
Chapter 2
Figure 2.1: Coordinate system for the representation of specialized discourse (Trosborg 1997, 16).
Figure 2.2: ESP classification by professional area (Xxxxxx and St. Xxxx 1998, 6). Figure 2.3: Exophoric and endophoric reference items (Xxxxxxxx and Xxxxx 1976, 33). Figure 2.4: Language of the law: major genre distinctions (Xxxxxx 1987a, 227).
Figure 2.5: Registers, genres and disciplines in academic discourse (Bhatia 2014, 36).
Figure 2.6: Genre systems in law (Bhatia 2006, 7).
Figure 2.7: International arbitration system of genres (Frade 2012, 47).
Figure 2.8: Discursive hierarchical patterning in arbitration awards (Bhatia and Lung 2012, 25-26).
Chapter 4
Figure 4.1: The Main Corpus of arbitral awards and its components.
Figure 4.2: Number of tokens and ratio of arbitral awards rendered by the specific arbitral institutions across the subcorpora.
Figure 4.3: Chart depicting the proportions of arbitral awards contained in the AAA Subcorpus.
Figure 4.4: Chart depicting the proportions of arbitral awards contained in the LCIA Subcorpus.
Figure 4.5: Chart depicting the proportions of arbitral awards contained in the SAC Subcorpus.
Figure 4.6: Chart depicting the proportions of arbitral awards contained in the CAM Subcorpus.
Figure 4.7: Chart depicting the proportions of arbitral awards contained in the HKIAC Subcorpus.
Figure 4.8: Chart depicting the proportions of arbitral awards contained in the ICC Subcorpus.
Figure 4.9: Chart Depicting the Proportions of Arbitral Awards Contained in the SIAC Subcorpus.
Figure 4.10: Key concepts included in the definition of a corpus (Xxxxxx, Biber and Gray 2022, 3).
Figure 4.11: Corpus-based and corpus-driven approaches to corpus linguistics according to Xxxxx (2012, 187).
Figure 4.12: Classification used to conduct the present research.
Figure 4.13: Retrieval algorithm for the compilation of a list of potential complex prepositions based on Xxxxxxxx’x (2005) work.
Chapter 5
Figure 5.1: Proportion of morphological structure of binomials in common law subcorpora.
Figure 5.2: Proportion of morphological structure of binomials in civil law subcorpora. Figure 5.3: Proportion of the eight identified groups of meanings expressed by complex prepositions in common law subcorpora.
Figure 5.4: Proportion of the eight identified groups of meanings expressed by complex prepositions in civil law subcorpora.
Figure 5.5: Proportion of the sentence types in the ArbDHP-2 and ArbDHP-3 Moves of common law subcorpora.
Figure 5.6: Proportion of the sentence types in the ArbDHP-2 and ArbDHP-3 Moves of civil law subcorpora.
CHAPTER 1 INTRODUCTION
1.1 Background
In the current context of globalization of trade and commerce, there has been an increase in the number of business deals and contracts being made at international level, especially in recent decades. Such an increase has led to an equally great number of disputes between parties coming from different countries (Bhatia et al. 2018, 1). As a consequence, legal issues do not confine themselves merely at national level, but rather take an increasingly international perspective (Gotti 2008a, 221; Xxxxxx, Candlin and Engberg 2008, 5). This phenomenon is a key driver behind the global success of international commercial arbitration, which can be defined as “a means by which international disputes can be definitely resolved, pursuant to the parties’ agreement, by independent, non-governmental decision makers” (Born 2001, 1) and is nowadays the most widely used Alternative Dispute Resolution (ADR)1 method (Xxxxxx et al. 2018, 1).
International arbitration is increasingly considered as a cost-effective and efficient alternative to litigation for resolving commercial disputes. Conflicting parties who resort to arbitration decide to have their dispute settled outside a judicial system by a third-party – namely, a single arbitrator or a tribunal composed of more than one arbitrator – instead of going through litigation in public courts (Moses 2017, 1).
As briefly mentioned above, one of the main aims of such a procedure is to allow the resolution of disputes for parties with diverse legal and cultural backgrounds without resorting to litigation. Over the past decades, international arbitration has significantly evolved, enabling parties from different linguistic, legal, and cultural backgrounds to engage in this alternative dispute resolution method. Moreover, arbitration aims at offering a
1 The acronym ‘ADR’ stands for ‘alternative dispute resolution’ and refers to other dispute resolution methods, aside from litigation and arbitration, which can be used by parties to resolve disputes. According to Xxxxx (2017, 14), in Europe and throughout most of the world, ADR refers to dispute resolution methods that exclude both litigation and arbitration. In contrast, in the United States, ADR encompasses all kinds of dispute resolution methods other than litigation, thus including arbitration as well. With the exception of arbitration and litigation, in most cases, the other methods of dispute resolution are not binding. These include mediation, conciliation, neutral evaluation, expert determination, etc.
procedure that is efficient, expeditious, confidential and, most importantly, universally enforceable – just like court decisions (Xxxxxx et al. 2012, 2).
The final outcome of the arbitration procedure is the so-called arbitral award, representing the arbitration tribunal’s determination on the merits. In the majority of cases, arbitral awards are not only binding upon the parties but are also enforceable against them and recognizable in other states (Xxxxx 2012, 190). This recognition and enforcement, often facilitated through the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards2 – commonly known as the New York Convention – extends to 172 Contracting States, underscoring its widespread international applicability. As stated by Article 1(2) of the New York Convention,
The term “arbitral awards” shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted.
Arbitral awards may also be defined as
[T]he decision of the arbitrator based upon the submissions made to him in an arbitration. It can be made orally, but an oral award is not covered by the provisions of the Arbitration Xxx 0000 (“the 1996 Act”) and oral awards are rare, or an exceptional ad hoc measure in conditions of urgency – followed by the same in writing. An award must be the consequence of an arbitrator deciding as between opposing contentions, having weighed the evidence of submissions. (Xxxxxx 2005, 9)
Arbitral awards represent “a complex discursive artefact which has the main purpose of announcing the arbitrator’s or the arbitral tribunal’s decision” (Xxxxxx, Garzone and Xxxxxx 0000, 1). As a result, arbitral awards play a prominent role in shedding light on the evolution of international arbitration procedures in recent times.
A decade ago, the genre of arbitral awards was considered a “relatively unexplored genre” (Bhatia, Garzone and Degano 2012, 1), largely due to the historical perception of arbitration as a highly protected practice. However, a notable transformation has occurred in recent years, marked by an “ongoing commitment to transparency” (Mourre and Xxxxxxxxx 0000,
2 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (“New York Convention”) Available at xxxxx://xxxxxxxx.xx.xxx/xxxxx/xxxxxxxx.xx.xxx/xxxxx/xxxxx- documents/uncitral/en/new-york-convention-e.pdf. The New York Convention is described more in detail in Section (...).
261, based on LCIA 20233), which involves the publication of arbitral awards. As Xxxxxx pointed out, “in order to be rigorous in our investigation, we require not only access to actual data from practice, but also an engagement of the professional community in research collaboration” (2010a, 468). The need to have access to arbitral awards has indeed been detected by several scholars4 and for several reasons. For instance, in recent decades it has been argued that the publication of arbitral awards could be used as ‘educational samples’ that could be used for the training of young arbitrators, as well as a way to promote consistency in the reasoning of arbitral awards at international level (Bhatia 2010a, 475). The publication of arbitral awards and the greater transparency could also facilitate the development of the law and the practice of arbitration (Xxxxxx, Xxxxxxx and Xxxxxx 2009, 11) and it could “set the basis for allowing arbitrators, practitioners, and academics to understand, discuss, and provide constructive criticisms of awards” (Xxxxxx 2013, 75). In a similar vein, Zlatanska (2015, 27-32) points out that the publication of arbitral awards could be positive for a number of reasons, including the fact it could:
1. Contribute to the uniform development of international law – including the lex mercatoria5;
2. Increase the foreseeability of outcomes, thus contributing to certainty and predictability in international business practices;
3. Promote consistency, in the sense that divergent decisions could be prevented by avoiding to threaten the credibility, the reliability and the authority of international arbitration;
4. Increase transparency and fairness by enabling the public “to see that justice is done”, thus strengthening the legitimacy of the system;
5. Help the training of new arbitrators, who would be able to learn how other arbitrators deal with certain types of situations and the types of reasonings that are produced;
3 LCIA Releases Challenge Decisions Online. Available at xxxxx://xxx.xxxx.xxx//Xxxx/xxxx-xxxxxxxx- challenge-decisions-online.aspx.
4 While confidentiality in the arbitral process offers certain advantages, it simultaneously poses a challenge for practitioners, decision-makers, and academics seeking relevant precedents (Born 2001, 48; Xxxxx 2017, 200). Arbitration-related publications indeed constitute a particularly interesting field of research for discourse analysts (Catenaccio 2016, 163). Arbitration awards, specifically, represent a compelling object of investigation as they not only state the final decision of the arbitration proceedings but also explain the circumstances that prompted the arbitration. This is achieved by providing justifications and relying on hard facts and reasoning (Xxxxxx, Xxxxxxx and Xxxxxx 2012, 1).
5 Lex mercatoria, which translates to ‘merchant law’ in Latin, denotes a set. Of commercial legal principles that evolved during medieval Europe alongside the growth of trade and commerce. It was primarily concerned with regulating commercial transactions and resolving disputes between merchants involved in international trade (Xxxxxxxxx 2004, 238).
6. Help ensure high-quality decision-making by arbitrators;
7. Help prevent conflicts of interests;
8. Allow external analysis of the arbitrators’ decisions, thus preventing misconduct and misapplications of the law;
9. Allow parties to identify the best-suited arbitrators to deal with their case;
10. Enhance the reputation of a specific arbitral institution if the award was rendered by it.
Other scholars have recently reaffirmed the need to publish arbitral awards to contribute to the development of law (Xxxxxx, Xxxxxxx and Xxxx 2020, 612) and to allow the public to corroborate that decision making is based on the “application of legal principles and objective factual assessments, thus increasing confidence that the arbitral process is fair and legitimate” (Xxxxxx and Xxxxxxxxx 0000, 265, based xx Xxxxxxx 2022, 694).
Over the last few years, several scholars, researchers and legal experts have therefore advocated such a shift in the arbitral culture, precisely from secrecy to transparency (Mourre and Xxxxxxxxx 2023, 260), thus allowing the publication of a restricted number of arbitral awards. Specifically, in 2019 there has been an important change in the ICC6 policy that developed to allow for the publication of arbitral awards in their entirety – either sanitized or not, depending on the parties’ preference. This relatively new and groundbreaking ICC policy7 of publication of awards has been facilitated by the establishment of Jus Mundi, an “international legal search engine using artificial intelligence to make international law and arbitration more transparent and accessible worldwide”8, launched in 2019. Since its inception, Jus Mundi has made several partnerships with arbitral institutions and associations worldwide. Through these collaborations, Jus Mundi offers access to exclusive legal information and content, including arbitral awards. Notably, thanks to the 2022 partnerships, the search engine provided +4,800 exclusive commercial arbitration documents through its database9, accessible through either free trial or other subscription options. Thanks to these policy changes, the advent of Jus Mundi, and its collaborative efforts, a substantial number
6 ICC International Court of Arbitration. Available at xxxxx://xxxxxx.xxx/xxxxxxx-xxxxxxxxxx/xxxxxxx- resolution-services/icc-international-court-of-arbitration.
7 ICC. Publication of ICC Arbitral Awards with Jus Mundi. Available at xxxxx://xxxxxx.xxx/xxxxxxx- resolution/resources/publication-of-icc-arbitral-awards-jus-mundi-not-icc-publication/.
8 Jus Mundi. General Terms of Sale and Subscription. Available at xxxxx://xxxxxxxx.xxx/xx/xxxxx- of- subscription#:~:text=Jus%20Mundi%20(%E2%80%9CJus%20Mundi%E2%80%9D,more%20trans parent%20and%20accessible%20worldwide.
9 Jus Mundi. Jus Mundi’s Global Partnerships in 2022. Available at xxxxx://xxxxxxxx.xxx/xxxx/0000/00/xxx-xxxxxx-xxxxxx-xxxxxxxxxxxx-xx-0000.
of arbitral awards rendered by arbitral institutions and tribunals from all over the world are now accessible to the general public.
Given the historical lack of easy accessibility to arbitral awards, posing challenges for researchers and practitioners seeking discursive data on international commercial arbitration practices, the recent ICC policy change and the establishment of the Jus Mundi search engine represent a pivotal stride toward the ‘democratization’ of access to legal knowledge through technology10. This development not only addresses the longstanding difficulty in obtaining such information but also marks a crucial step in enhancing accessibility to discoursal data. The publication of a curated selection of arbitral awards and the ensuing availability of discoursal data signify a noteworthy milestone for researchers in both the legal field and linguistic and genre analysis (e.g., Xxxxxx 1990; Xxxxxx 1993).
It is worth noting that there is still room for further steps to achieve an even greater democratization in the accessibility of arbitral awards. Nevertheless, the current availability of these awards on the Jus Mundi search engine already facilitates research and analyses on a substantial number of arbitration texts and procedures.
For the purposes of this study, it was therefore possible to collect a limited number of arbitral awards – drafted in English – through the Jus Mundi search engine and to analyze them, thus allowing this study to focus on the genre of arbitral awards. Specifically, the analysis is carried out on a corpus of arbitral awards that have been rendered by prominent arbitral institutions, including the American Arbitration Association (AAA), the London Court of International Arbitration (LCIA), the Hong Kong International Arbitration Centre (HKIAC), the Camera Arbitrale di Milano (CAM) (Milan Chamber of Arbitration), the Swiss Arbitration Centre (SAC), the Singapore International Arbitration Centre (SIAC), and the ICC International Court of Arbitration.
Through the collection of the aforementioned arbitral awards, it was possible to collect the related data and to conduct a linguistic analysis on such texts both on a quantitative and a qualitative level. This study operates within the field of corpus linguistics (XxXxxxx and Xxxxxx, 1996; Xxxxx 2006, 2010; XxXxxxx and Xxxxxx 2012; Xxxxxxxxxxxxx 2020; Xxxxxx, Biber and Gray 2022). It is acknowledged that both the lex arbitri – namely, “the law governing the arbitral proceedings”, also referred to as “the procedural law of the arbitration, the curial law [...] or the loi de l’arbitrage” (Born 2001, 43) – and the applicable law of the arbitration affect various aspects of the arbitral proceedings (Xxxxxxx-Xxxx 2021, 98), including the way procedures are conducted and the way arbitral awards are drafted.
10 Jus Mundi. Available at xxxxx://xxxxxxxx.xxx/xx.
However, this study specifically focuses on the role of the applicable law of the arbitration
– whether civil law or common law – and the influence of cultural differences on the professional reasonings articulated in the arbitral texts (Hafner 2011, 119). The assertion posited is that, even in the era of globalization, these cultural differences continue to manifest as cultural variations in the form of reasoning.
The linguistic choices adopted in arbitration texts are often “greatly influenced by the cultural environment in which these texts have been produced” (Gotti 2008a, 232). More specifically, Xxxxx (2008a, 233) notes that “[t]he different legal system may determine the adoption of different textual strategies on the drafter’s part”. Legal discourse is indeed shaped by the legal system within which it evolves. As Xxxxxx (1993, 245) highlights in his work,
It is generally agreed that common law, which forms the basis for all legislation in the UK, and the civil code, which is the basis for most of the Continental legislation, including the French, are different in two main aspects. First, the civil code prefers generality whereas the common law goes for particularity. And, second, the civil code draftsman is eager to be widely understood by the ordinary readership, whereas the common law draftsman seems to be more worried about not being misunderstood by the specialist community.
Such a difference in linguistic and textual realization is owed to important conceptual differentiations stemming back to civil law and common law, namely the two most widely dispersed legal traditions of the world. This is argued by Xxxxx (2008a, 235) as well, who highlights that
In the civil law system the judiciary is entrusted with the task of construing, interpreting and applying the general principles outlined in the civil code to specific real-life situations. This requirement therefore privileges stylistic choices such as generality and simplicity of expression. The common law system, instead, is based on the principle of precedence, by means of which the decisions taken by one judge become binding on all subsequent similar cases. This system in consequence regards certainty of expression as the most valued quality in legal drafting.
It is therefore common ground that legal discourse differs in terms of linguistic and textual realizations on the basis of the legal system involved. This aligns with Xxxxxxxxxx and Xxxxx’x assertion on the importance of context, emphasizing that “discourse is not produced without context and cannot be understood without taking the context into consideration”
(1997, 276, based on Xxxxxxx and Xxxxxxx, 1992). This study is therefore based on the “methodological assumption that texts and genres can be investigated only within the context of the institutional and professional practices in which they originate” (Bhatia, Garzone and Xxxxxx 0000, 1). Accordingly, this study conducts a linguistic analysis on a corpus of arbitration awards, rendered by several arbitration seats located in different legal systems and subject to different applicable laws. The analysis carefully considers the contextual elements of international commercial arbitration, encompassing the arbitral institutions, the legal systems, and the applicable laws involved.
1.2 Research questions, goals and enabling objectives
This study aims at conducting a linguistic analysis on a corpus of arbitral awards rendered by different arbitral institutions that are based in different countries, shedding additional light on the genre of arbitral awards. The awards under analysis are examined from a linguistic and textual point of view. Furthermore, this study aims at investigating the differences between the various subcorpora of the Main Corpus (see Chapter 4) and at assessing how such differences are connected to the choice of the applicable law of the different awards. The following main research questions are therefore formulated in consideration of the background of this study and of the importance of the elements described in the previous section:
1. What are the linguistic, cultural and legal differences between the civil law and the common law arbitral awards generated in the arbitral institutions under consideration?
2. To what extent do common law and civil law features influence the arbitration awards?
This study serves as a pilot investigation that aims at providing a preliminary analysis to be used as the groundwork for subsequent, more extensive investigations involving a larger dataset, potentially sourced from Jus Mundi or other relevant databases. The project design is guided by two primary objectives:
● To analyze the arbitral awards under consideration on both qualitative and quantitative levels in order to describe the genre and the language used;
● To compare the arbitral awards under consideration, with a focus on discerning differences related to civil law and common law features.
The initial hypothesis of the study is that differences in arbitral texts arise from the profound influence of practitioners and legal experts who are deeply influenced by both their legal traditions (Bhatia 1993, 245) and the linguistic and cultural nuances of their country of origin (Gotti 2008a, 235). As a result, the applicable law of each arbitration case turns out to be particularly crucial for the drafting of the arbitration text, thus affecting it both at the linguistic and at the textual level.
To achieve the aforementioned goals, the following enabling objectives have been established:
● To collect a corpus of arbitral awards whose applicable laws are from both common law and civil law countries;
● To provide an overview of specialized languages, particularly focusing on the main features of legal English, the language in which all considered arbitral awards are drafted;
● To investigate the context of international commercial arbitration, along with the institutional and professional context in which the arbitral awards under analysis have been rendered;
● To use software packages generally employed in the field of corpus linguistics in order to obtain quantitative data and conduct quantitative analysis.
1.3 Outline of chapters
This study is organized into six chapters, each of which contains several levels of divisions. Specifically, the second-level divisions are referred to as ‘sections’ (e.g., 1.2), the third-level divisions as ‘subsections’(e.g., 1.2.1), and the fourth-level divisions as ‘paragraphs’ (e.g., 1.2.2.1). This study first discusses the theoretical framework by providing an overview of the literature review (Chapters 2 and 3). Subsequently, it provides the description of the methodology employed to conduct the study, including the collection and preparation of the materials used (Chapter 4). In the following chapter, details regarding the analysis conducted and the results obtained are presented (Chapter 5). Finally, Chapter 6 provides a synthesis of the obtained results and draws conclusions based on them.
In Chapter 2, the significance of acknowledging specialized discourse as a multifaceted phenomenon, characterized by the presence of diverse specialized languages and genres, is emphasized. The development and application of English for Specific Purposes (ESP) are discussed, followed by a systematic outline of the main features of specialized discourse according to Xxxxx’x typology (2011a), which involves lexical, syntactic, and textual features. Following this, the chapter delves into the intricate interplay between language and law, adopting a genre-based perspective (Bhatia 2004, 2014). It underscores the global significance of legal English, identifying specific lexical and syntactic features. The paramount importance of genre analysis, particularly within legal genres, is then emphasized. Notably, this study centers on the legal genre of arbitral awards, utilizing the framework established by Xxxxxx and Xxxx (2012) for analysis and discussion.
Chapter 3 delves into the contextual analysis of the legal texts under examination. This exploration is based on the methodological premise that genres can be thoroughly examined only within the framework of the institutional and professional practices from which they stem (Bhatia, Garzone and Degano 2012). Therefore, this chapter begins by defining international commercial arbitration and outlining its fundamental characteristics. It then traces the origins of commercial arbitration, offering a brief overview of its historical development. Following this, the chapter examines the evolution of the legal framework surrounding international commercial arbitration in the early 20th century. Lastly, it provides a comprehensive overview of the current international arbitration frameworks within the common law and civil law legal systems under scrutiny, including the United States, the United Kingdom, Singapore, Hong Kong, France, Italy, and Switzerland.
Chapter 4 presents a detailed account of the methodology employed to carry out the search and analysis in this research. It outlines the corpus under examination, elucidating its
collection, preparation, and composition processes. Additionally, preliminary methodological insights are provided, offering a broad overview of corpus linguistics methods and the software employed for research and analysis. This chapter further delineates the methodological framework adopted in this research, along with the specific methodology and data retrieval techniques employed for each of the lexical and syntactic features under analysis.
Chapter 5 contains the analysis and findings of this study. It delves into the lexical and syntactic choices adopted within the arbitral awards under examination. In the context of this study, it was crucial not only to recognize lexical and syntactic features of legal English but also to identify those most relevant for discerning disparities between common law and civil law drafting conventions, in order to address the research questions posed. Consequently, the focus was narrowed to analyze specific features that could potentially serve as indicators of differences in drafting styles between common law and civil law. This selection process drew upon prior analyses conducted by Xxxxx (2008a) and Xxxxxx, Xxxxxxx, and Xxxxxxx (2008), which outlined distinctions between traditional common law and civil law approaches. As a consequence, this chapter specifically addresses the research questions posited in this introductory chapter and scrutinizes the following categories of features: binomials and multinomials, archaisms, Latinisms, and terms of French/Xxxxxx origin, nominalizations, complex prepositions, modal auxiliaries, sentence length and complexity, impersonal structures, and passive constructions.
Chapter 6 provides an interpretation of both quantitative and qualitative data illustrated and discussed in Chapter 5, culminating in conclusions regarding the disparities between common law and civil law subcorpora. It also discusses the limitations of the study and provides insights into potential avenues for further research, suggesting directions for exploring related topics or expanding upon the current investigation.
CHAPTER 2
SPECIALIZED LANGUAGES
This chapter underscores the importance of considering specialized discourse as a multifaceted phenomenon characterized by the existence of diverse specialized languages and genres (Gotti 2011a; Xxxxxx 1987a, 1993, 2006). As a starting point, Section 2.1 provides an introduction to specialized languages, offering an overview of the development and application of English for Specific Purposes (ESP) (2.1.1). Subsequently, Section 2.2 systematically outlines the overarching features of specialized discourse based on Gotti’s typology (2011a), encompassing salient lexical (2.2.1), syntactic (2.2.2), and textual (2.2.3) characteristics. Proceeding to Section 2.3, the chapter expounds upon the intricate relationship between language and law, adopting a genre-based perspective (Xxxxxx 2004, 2014). Section 2.4 subsequently highlights the global importance of legal English, pinpointing specific features discernible at both the lexical (2.4.1) and syntactic (2.4.2) levels. Ultimately, in Section 2.5, the emphasis is placed on the crucial role of genre analysis, particularly focusing on legal genres. Indeed, this study focuses on the legal genre of arbitral awards, explicated in detail in Subsection 2.5.1.
2.1 Introducing specialized languages
This study focuses on the discourse of commercial arbitration, delving into the language of law as a specialized form of communication. Since this study specifically focuses on the genre of arbitral awards and aims at conducting the linguistic analysis of the Main Corpus of collected awards (see Chapter 4), it is first important to specify what is meant by both ‘specialized language’ and ‘legal language’, as they are foundational concepts crucial to this study11.
The interest in register for special purposes gained prominence after World War II, specifically through studies conducted by the London School and its main exponents, including Xxxx Xxxxxx Xxxxx (1890-1960). This period marked a significant shift in
11 It is important to specify that, although it is acknowledged that in linguistics ‘specialized’ and ‘discourse’ constitute two different concepts, in this study ‘specialized discourse’ and ‘specialized languages’ are both used to refer to the “specialist use of language in contexts which are typical of a specialized community stretching across the academic, the professional, the technical and the occupational areas of knowledge and practice” (Gotti 2011a, 24).
perspectives as language. Previously regarded as a singular, non-contextualized system, language began to be recognized as “a means of communication that is highly flexible and easy to use in several contexts” (Maglie 2004, 9). This shift was propelled by the evolution of linguistic studies spanning the 19th to the 20th century.
In the 19th century, language was considered as a single system, studied from a static and impersonal standpoint. This perspective was largely influenced by Xxxxxxxxx xx Xxxxxxxx’x (1857-1913) theory of ‘une langue une’ (xx Xxxxxxxx, 1916), which distinguishes between langue – “a social product of the faculty of speech and a collection of necessary conventions that have been adopted by a social body to permit individuals to exercise that faculty” (Xxxxxxx 2004, 78) – and parole – “an individual act [that] is wilful and intellectual” (Xxxxxxx 2004, 78).
While valuable, Xx Xxxxxxxx’x theory faced criticism by several scholars who considered it paradoxical as within such a theory “langue is presented as a social fact which is in some way independent of social use” (Xxxxxxxxx 1979, 10). Furthermore, scholars such as Xxxxxxx and his followers considered that xx Xxxxxxxx’x theory did not adequately account for the “fluidity of vernacular dialogue” (Xxxxxx 2004, 8).
Noam A. Xxxxxxx (1928- ) also contended that linguistic studies should not be concerned with linguistic variation but rather should prioritize the study of linguistic structure (Xxxxxxx 1957, 15). In his work, Xxxxxxx identifies two main elements by analyzing language, i.e. ‘competence’ – which is the idealized capacity of the user with regard to the rules of grammar – and ‘performance’ – which is the production of such an idealized capacity in utterances. However, this theory has also faced some criticism. His linguistic analysis centers on the study of grammar, which is “idealized as an abstract system whose personal, socio-cultural, geographical and contextual factors are ignored” (Xxxxxx 2004, 9).
As noted earlier, the post-World War II era marked a shift in perceiving language as a flexible means of communication, largely credited to Xxxxx and the scholars of the London School. Moreover, this period saw the emergence of the concepts of context and social roles as fundamental considerations in linguistics:
The multiplicity of social roles we have to play as members of a race, nation, class, family, school, club, as sons, brothers, lovers, fathers, workers, churchgoers, golfers, newspapers readers, public speakers, involves also a certain degree of linguistic specialization. Unity of language is the most fugitive of all unities whether it be historical, geographical, national, or personal. There is no such thing as ‘une langue une’ and there never has been” (Xxxxx 1957: 29, quoted in Maglie 2004, 10).
As a matter of fact, there is a growing recognition that the degree of 'specialization' in language can vary depending on the social role and the specific situation at hand.
These studies laid the foundational groundwork for Xxxxxxx Xxxxxxxx’x (1925- ) exploration of registers and systemic functional grammar. According to Xxxxxxxx’x theory, language is not merely a collection of sentences but rather represents an exchange of meanings in various interpersonal contexts (Xxxxxxxx 1978, 2). Furthermore, Xxxxxxxx posits that language is intricately woven into the social system, thus being subject to both variation according to the ‘user’ and variation according to ‘use’. The former type of variation refers to the variation in accent and dialect, whereas the latter refers to the register variation, which produces variation in meaning. Specifically, register is “the language you are speaking at a particular time, determined by what you and others are doing there and then, that is, by the nature of the ongoing social activity” (Maglie 2004, 10).
In line with Xxxxxxxx, McIntosh and Strevens state, “language varies as its function varies; it differs in different situations. The name given to a variety of a language distinguished according to its use is register” (1964, 87). The situation in which social activities take place assumes a fundamental aspect. Specifically, the concept of ‘context of situation’, which was originally suggested by Xxxxxxxxxx (1923) and elaborated by Xxxxx (1957), implies that
language comes to life only when functioning in some environment. We do not experience language in isolation – if we did we would not recognize it as language – but always in relation to a scenario, some background of persons and actions and events from which the things which are said derive their meaning (Xxxxxxxx 1978, 28).
Within any context situation, the relevant aspects to predict the linguistic features that are usually associated with it are referred to as field, tenor, and mode. These elements serve as the “basis for deriving the features of the text from the features of the situation” (Trosborg 1997, 17, based xx Xxxxxxxx and Xxxxx 1990, 22) and are described as follows (Xxxxxxx et al. 1972, 185-6, quoted in Xxxxxxxx 1978, 33):
Field refers to the institutional setting in which a piece of language occurs, and embraces not only the subject-matter in hand but the whole activity of the speaker or participant in a setting [we might add: ‘and the other participants’]...
Tenor… refers to the relationship between participants… not merely variation in formality… but… such questions as the permanence or otherwise of the relationship and the degree of emotional charge in it…
Mode refers to the channel of communication adopted: not only the choice between spoken and written medium, but much more detailed choices [we might add: ‘and other choices relating to the role of language in the situation’]...
As it can be noticed, since the post-war period, scholars have progressively acknowledged the importance of studying language in connection with the variables of person- environment-context of communication (Maglie 2004, 11). This acknowledgement stems from the understanding that “all language is language-in-use, in a context of situation, and all of it relates to the situation” (Xxxxxxxx 1978, 33).
The aforementioned studies have laid the foundations of ‘LSP’, an acronym for ‘language for special purposes’. In order to illustrate what LSP entails, it is first necessary to mention that the latter is usually described in contrast with LGP, which stands for ‘language for general purposes’ and refers to the language that is used every day in ordinary situations for common communication. As a result, LSP refers to the language employed to discuss specialized fields of knowledge, and it is therefore “more accurate to talk about LSP in the plural (i.e. languages for special purposes) since different LSPs are used to describe different areas of specialized knowledge” (Xxxxxx and Pearson 2002, 25).
In LSP, the context in which discourses originate and the relationship between the various contextual factors take on a fundamental role. In this regard, specialized discourse is examined by Xxxxxxxx (1997, 16) according to a coordinate system in which the horizontal line shows the disciplinary domains in which language can be divided – such as scientific language, legal language, medical language, and so on – and the vertical line indicates the specific ‘layer’ of the domain12 under consideration. Such a coordinate system is shown in Figure 2.1 below.
12 As Trosborg (1997, 16) states, the ‘layer’ of a specific domain is defined according to sociological functions and produces several functional styles, i.e. scientific, literary, colloquial, and so on.
Figure 2.1: Coordinate system for the representation of specialized discourse (Trosborg 1997, 16).
Before delving into the specificities of LSPs, it is crucial to acknowledge the historical disagreement surrounding the notion of specialized discourse (Gotti 2011a, 9-10). While some authors distinguished specialized discourse from general language based on specific features that characterize it, others considered these distinctive traits negligible. This differing perspective led some scholars to minimize formal differences between the two types of discourses. It is true that most LGP words are used in LSP conversations; however, LSP does not merely employ specialized terms, but also combines them “in a special way” (Xxxxxx and Xxxxxxx 2002, 26). As Gotti (2011a, 18) states,
there is far more than a straightforward lexical distinction at the root of specialized discourse. The mere identification of marked elements is not enough to account for their origin or for the rationale which has led to their appearance. Register analysis has helped, on the other hand, to shift the researchers’ focus from a chiefly statistical-quantitative approach (which continues to this day, also thanks to a digital word-processing technology) to a mainly ‘qualitative’ approach, which seeks to identify the peculiarities of specialized texts in a perspective that is not only microlinguistic but takes into account the discourse in which they are embedded.
As a result, specialized languages are characterized by a combination of elements such as terminology, collocations, and stylistic features.
Furthermore, in the literature other contrasting viewpoints have emerged. Some scholars considered specialized discourse as a homogenous entity with shared traits, while others contested this view, asserting that specialized discourse does not constitute a single type of
discourse to be treated as a whole, but rather as a heterogeneous group in which different genres should be considered separately and through different approaches (Gotti 2011a, 10). The latter perspective seems to correspond to the truth, as subsequent studies13 have confirmed that each specialized genre provides specific results that cannot be extended to other kinds of genres, even when they belong to the same field.
The terminology employed to define the object of specialized discourse has also represented a controversial matter. For instance, the expression ‘specialized discourse’ has often been compared to the notion of ‘restricted language’14. However, the latter refers to “particular restricted codes that employ certain sentences of general language in specialized communication” as in “the case, for example, of flight control communication, based on the exchange of standard messages using set phrases with a set of agreed variants” (Gotti 2011a, 22).Therefore, it is not appropriate to use the expression ‘restricted language’ when referring to the concept of specialized discourse.
The expression ‘special languages’ has also been compared to the notion of ‘specialized discourse’. Scholars like Xxxxxxxxxx (1994, 8) and Scarpa (2001, 1) use the expression lingua speciale (special language) to refer to languages that are indeed considered as ‘special’ as they encompass the communicative needs of a restricted number of speakers in addition to fulfilling referential needs, i.e. specialized lexicon. However, Xxxxx observes that the label ‘special languages’ should be reserved for “languages with special rules and symbols deviating from those of general language” such as “Code Q, which is frequently used in the telecommunications sector15” or to “languages sharing the communicative conventions of a given language but also possessing other conventions which are not part of these resources” (2011a, 23).
Another expression that has been used to refer to LSP is linguaggi settoriali (sector-specific languages) (Beccaria, 1973). This expression encompasses both the language for advertisement and the language for science, thus constituting a vague term since
13 One of the most relevant studies is that of Xxxxxxx (2006, 4), in which the author acknowledges that legal language differs depending on the genre or discourse community in which it occurs. Indeed, in his work Xxxxxxx states that “[l]egal language can be divided into sub-genres, particularly according to the various sub-groups of lawyers. This is explained by the fact that the language of each sub- group of lawyers to some degree possesses particular characteristics (vocabulary, style). This is notably so as to the language of legal authors, legislators (laws and regulations), judges, and administrators, as well as advocates.” Such a viewpoint also coincides with that of other scholars such as Xxxxxxxx, who considers LSP “as a range of domains which may be further divided into subdomains involving a number of sublanguages” ( 1997, 16).
14 For instance, in his work Xxxxxxx (1981, 269) employs the expression ‘restricted languages’ to refer to specific fields of discourse such as legalese, journalese, and the language of linguistic theory. 15 Specifically, special languages such as Code Q are different from standard languages. Furthermore, they are codes of communications that “use proper rules and particular symbols and whose number of messages available for communication is fixed and finite” (Xxxxxx 2004, 17).
“some of the linguaggi settoriali refer to the ‘mode’ used (for instance, newspaper and TV), others to the purpose (sport, literary criticism, advertisement) other to the social environment (underworld slang). It seems to imply a division within languages for special purposes hiding their interdisciplinarity at the lexical, morphosyntactical and textual level” (Maglie 2004, 17, based xx Xxxxx 1991, 7-8).
Finally, the term ‘microlingue’ has also been used to refer to specialized discourse studies. Specifically, in 1981 Xxxxxxx uses the expression ‘scientific-professional microlingues’ to refer to
[M]icrolingue (prodotte cioè dalla selezione all’interno di tutte le componenti della competenza comunicativa in una lingua) usate nei settori scientifici (ricerca, università) e professionali (dall’operaio all’ingegnere, dall’infermiere al medico, dallo studente di liceo al critico letterario) con gli scopi di comunicare nella maniera meno ambigua possibile e di essere riconosciuti come appartenenti ad un settore scientifico o professionale. [Microlingues (which are produced from a selection within all the components of communicative competence in a language) that are used in both scientific fields (research, university) and professional fields (from laborers to engineers, from nurses to medical doctors, from high school students to literary critics) with the aim of communicating in the least ambiguous way possible and of being recognized as belonging to a scientific or professional field. (Xxxxxxx 2000, 13)
[my translation]
However, Xxxxx (1991) subsequently claimed in his work that such a term is also unsuitable to refer to specialized discourse “for its reference to a microcosm lacking the expressive richness of standard language” (Gotti 2011a, 23).
The most appropriate expression to refer to the area of study that draws “its strength from the description of language use in specialised academic and professional contexts” (Bhatia 2002b, 42) are therefore ‘specialized discourse’ or ‘specialized languages’. According to Xxxxx, these terms reflect “ more clearly the specialist use of language in contexts which are typical of a specialized community stretching across the academic, the professional, the technical and the occupational areas of knowledge and practice” (2011a, 24). By using this expression and the definition provided by Xxxxx, the focus is therefore directed toward three fundamental elements essential for the development of specialized discourse: the user, the
domain of use – i.e., the specific situation or context that is referred to – and the specific application of language in that particular field.
2.1.1 ESP development and application
When outlining LSP and its characteristics, it is important to specify that LSP should not be confused with ‘ESP’, which stands for ‘English for Specific Purposes’ and emerged as a branch of LSP during the 1960s. ESP is defined by Xxxxxxxxx and Starfield as “the teaching and learning of English as a second or foreign language where the goal of the learners is to use English in a particular domain” (2013, 2). ESP has separated from the more general movement because of the escalating importance of English as a Lingua Franca16 (ELF) in cross-linguistic professional negotiations. As Xxxxxx and St. Xxxx (1998, 19) state
The original flourishing of the ESP movement resulted from general developments in the world economy in the 1950s and 1960s: the growth of science and technology, the increased use of English as the international language of science, technology and business, the increased economic power of oil-rich countries and the increased number of international students studying in the UK, USA and Australia.
As a matter of fact, ESP students are usually adults who are quite proficient in English and need to improve their linguistic skills so as to “communicate a set of professional skills and to perform particular profession-related activities” (Xxxxxx 2015, 24). For this reason, ESP focuses more on language in context than on grammar and language structures.
In ESP “English is not taught as a subject separated from the learners’ real world (or wishes); instead, it is integrated into a subject matter area important to the learners” (Xxxxxx 2015, 24). It follows that ESP differs from General English (GE) not only because of the difference of the learners involved and their skills but also because of the way courses are built and delivered.
16 English as a Lingua Franca (ELF) refers to the movement that distinguishes itself from ‘English as a Foreign Language’ (EFL) teaching as it locates itself within a Global English paradigm (O’Xxxxx 2014, 533) in which “people from different lingua-cultural backgrounds appropriate the resources of the [English] language and exploit its virtual meaning potential as required in different contexts and purposes” by showing themselves “capable of effective communication without conforming to the forms of Standard English or native speakers norms of usage” (Xxxxx and Xxxxxxxxxx 2014, 7). Furthermore, ELF users belong to different lingua-cultural backgrounds, and therefore “naturally bring to their interactions assumptions based on the norms of usage and communicative behaviour of their own languages” (Xxxxx and Xxxxxxxxxx 2014, 7).
Furthermore, ESP has traditionally been divided into two main branches, namely English for Academic Purposes (EAP) – which refers to “any English teaching that relates to academic study needs” – and English for Occupational Purposes (EOP) – which “involves work- related needs and training” (Xxxxxx 2015, 25; Xxxxxx 2004, 12). Such a classification can be visually represented in a tree diagram in which EAP and EOP are delineated based on their focus on academic or professional field, as illustrated in Figure 2.2.
Figure 2.2: ESP classification by professional area (Xxxxxx and St. Xxxx 1998, 6).
It is possible to identify different stages of development of ESP17. In his work, Xxxxx (2013) identifies four historical periods of ESP development. In the first identified stage (1962- 1981), ESP mainly focused on terminology and language at the sentence level (Xxxxxxxxxx and Xxxxxx 1987, 10; Xxxxxxx, Xxxxxx and Riboni 2016, 8). Indeed, “research tended to be descriptive, involving statistical grammar counts within written discourses” (Xxxxx 2013, 7). As Xxxxxx noted, this type of research “had descriptive validity but little explanatory force” (1988, 59).
During the second phase of development, which occurred between 1981 and 1990, the attention shifted to the level above the sentence, thus including analyses of texts at the rhetorical and discourse levels. This marked a departure from the preceding stage, characterized by quantitative studies primarily centered on lexico-grammatical features at or below the sentence level (Maglie 2004, 14). Such a phase therefore involves the consideration of both the social context and the authorial purpose, thus striving for a ‘multi-
17 It must be pointed out that, as Xxxxxxxxxx and Xxxxxx (1987, 9) emphasize in their work, ESP is not a “monolithic universal phenomenon” and, as a consequence, the stages that are described in this subsection might not be operating in all countries at the same time. For this reason, the brief overview of the stages of the ESP development is general in its focus.
layered’ rather than a ‘one-dimensional’ description of textual form. As Xxxxxx states, “Work in ESP was by the middle 80s not merely interested in characterizing linguistic effects; it was also concerned to seek out the determinants of those effects” (1990, 3-4). As a matter of fact, in this period research “began to focus more on text structure as a realization of the writer’s communicative purpose and less on the morpho-syntactical elements of the sentence level” (Maglie 2004, 16, based on XxXxxxxx 1984).
Furthermore, in this period a great number of articles published in the English for Special Purposes Journal (ESPJ) focused on needs assessment, considered the cornerstone of ESP (Xxxxxxxxxx and Xxxxxx, 0000; Xxxxxxx, 1991; Xxxxxx-Xxxxx and St Xxxx, 1998; Xxxxxxxxx and Xxxxxxx, 2001). As Xxxxxxxx (1991, 7) claims, “needs analysis is generally regarded as critical to ESP, although ESP is by no means the only educational enterprise which makes use of it”. Xxxxxxxx further observes that “ESP courses develop from a needs analysis, which aims to specify as closely as possible what exactly it is that students have to do through the medium of English” (1991, 3). Needs analysis18 therefore constitutes a crucial process in developing ESP courses, as “it must be conducted prior to a language course and syllabus design, materials selection, teaching and learning methodology and evaluation” to develop courses that are “suitable, practical and successful for a particular context” (Xxxxxx 2015, 26).
The foundation of ESP lies indeed in the importance attributed to learners, to their need for learning a specialized foreign language and to the learning context. Learners’ needs therefore take on a central importance in the course design process. Maglie (2004, 11) observes indeed that ESP
18 In ESP needs analysis, different components can be identified and employed to develop ESP courses. Specifically, many ESP scholars suggest that there are three fundamental components in ESP needs analysis, namely the Target Situation Analysis (TSA), the Learning Situation Analysis (LSA), and the Present Situation Analysis (PSA). The TSA refers to “forms of needs analysis, which centers on identifying the learners’ language requirements in the occupational or academic setting” (Rahman 2015, 26, based xx Xxxx 1994). The LSA refers to “why do learners want to learn” and involves identifying “effective ways of learning the skills and language” (Xxxxxx 2015, 26, based xx Xxxxxx-Xxxxx and St. Xxxx 1998). The PSA “seeks to ascertain what the students are akin to at the start of their language course, looking into their strengths and weaknesses” (Xxxxxx 2015, 26, based xx Xxxxxxxx 1991). It can therefore be stated that the purpose of needs analysis is to set the existing ESP knowledge on a more scientific basis by developing methods for connecting language analysis to the learners’ reasons for learning. As Xxxxxxxxxx and Xxxxxx (1987, 12) state, “Given that the purpose of an ESP course is to enable learners to function adequately in a target situation, that is, the situation in which the learners will use the language they are learning, then the ESP course design process should proceed by first identifying the target situation and then carrying out a rigorous analysis of the linguistic features of that situation. The identified features will form the syllabus of the ESP course.”
has focused mainly on helping students learn the linguistic peculiarities of languages for specific purposes (from the grammar to the lexis of LSP, to certain discourse features of spoken and written texts and, finally, to the genres used within the LSP domain) which they must master in order to be considered competent members of the discourse communities they aspire to join.
In ESP, the primacy of need is therefore established. The emphasis is on needs analysis, text analysis and teaching students how to effectively communicate in their professional environment (Xxxxxx and St. Xxxx 1998, 1).
The third stage (1990-2011) is identified by Xxxxx (2013, 12) as the ‘Modern age in ESP’. This is characterized by the establishment of new international journals19, including the Journal of Second Language Writing (JSLW) in 1991 and the Journal of English for Academic Purposes (JEAP) in 2001, which focused, together with the English for Special Purposes Journal (ESPJ), on ESP research. During this period, there was also a dominance of genre analysis (Xxxxxx 1990, 2004; Xxxxxx 1993, 2004; Xxxxxxxxx 2001; Xxxxxx 2004) due to the increasing importance attributed to the socially-situated character of genres, namely to a social and pragmatic dimension of genres. Additionally, corpus research gained prominence during this stage, as ESP teaching methods were influenced by advancements in corpus linguistics and technological improvements in language analysis. As Xxxxx (2013, 385) points out, such advancements have been useful “first, as a tool for helping with traditional types of language learning and, second, as a space for creating new forms of communicating”. Specifically, corpus linguistics has been influential in ESP for the purposes of “course and syllabus design, development of teaching materials, as well as for pedagogically-oriented ESP research, as all these activities can now be grounded in massive collections of data and supported by software for text analysis” (Garzone, Xxxxxx and Riboni 2016, 8-9, based xx Xxxxxxx, Xxxxx and Xxxxxxxxx 2011, 3-4), thus showing “how language is used in the context of particular academic genres” (Xxxxxxxxx 2013, 351).
19 As Xxxxx (2013) highlights, the importance of the abovementioned international journals in the history of ESP development is the fact that “in many parts of the world, academics are now required to publish in international journals (preferably those on the Social Science Citation Index) in order to be promoted in their home institutions. This move results, in many cases, from the efforts on the part of the administrators of individual institutions and national educational organizations to boost university rankings internationally [...]. Not surprisingly, English for Specific Purposes, as well as other international publications (especially those on the SSCI), have experienced a rapid increase in international submissions” (Xxxxx 2013, 13). It therefore becomes important for researchers to publish in SSCI journals, and quality submissions are expected in the future from all different countries.
The last stage (2012- ) identified by Xxxxx (2013, 18) is ‘the future’, which is mainly characterized by international authorship, multi-methodological approaches and growing attention to multimodalities20. This stage is also identified by Xxx and Xx (2021) as the ‘flourishing stage’21, although in their work such a stage begins in the early 2000s. Liu and Xx’x (2021, 108) data reveal that during this period there has been
a tremendous expansion in the form of: (1) intensively researching previous charted areas (e.g., academic genres), often from a new perspective (e.g., cross-disciplinary variation); (2) inventively combining known research areas (e.g., lexical bundles and rhetorical structure) to open up to new avenues of research; and (3) staking out new territory (e.g., phrasal patterning and complexity).
Xxx and Xx therefore outline five active areas of ESP research at this stage: disciplinary academic discourse, ethnolinguistic variation, academic vocabulary and formulaic language, metadiscourse in English and academic writing, and academic English in a global context. In conclusion, with regard to the future of ESP, it is relevant to highlight the recent work by Xxxxxx (2023). In her study, Xxxxxx provides a comprehensive overview of the future perspectives offered by the evolution from ESP to the burgeoning use of English for Specific Academic Purposes (ESAP) and English for Scientific and Professional Purposes (ESPP) (Pinnavaia and Zanola 2023, 3). The conceptualization of ESPP arises from the necessity to equip adult English learners with linguistic and pragmatic competence, ensuring their adeptness in communication to prevent inadequate or inappropriate language use. This becomes particularly crucial in the context of the progressively international, multilingual, and multicultural nature of work and professional environments. The distinct needs of adult learners, whether in academia or professions, within natural sciences or humanities, markedly differ from those of younger students. Adult learners operating in English at work engage in advanced conversations, discuss topics demanding sophisticated skills, and are
20 In the volume Critical Graphicacy: Understanding Visual Representation Practices in School Science edited by Xxxx et al. (2005), they illustrate how visual displays should be an important focus of ESP research and that visual images are used “to present data, illustrate abstract concepts, organize complex sets of information, facilitate the integration of new knowledge with existing knowledge, enhance information retention, mediate thinking process, and improve problem solving” (Xxxx et al. 2005, 208-9).
21 The so-called ‘flourishing stage’ identified by Xxx and Xx (2021, 97) – which therefore introduces a variety of research interests (e.g., move analysis, cross-disciplinary and cross-linguistic variation, lexical bundles, vocabulary lists, metadiscourse, and academic writing in a global context) – is preceded by the stages identified by them, namely the ‘conceptualizing stage’ (1970s-1990s), focusing on needs analysis, the ‘maturing stage’ (1990s-2000s), which is characterized by the development of major methodological approaches (e.g., genre-based, corpus-based, contextual, and critical approaches).
expected to share knowledge with colleagues, clients, customers, and other experts in their respective fields. Consequently, the primary challenges for these learners revolve around the quality of communication, understanding the communicative context, and selecting an appropriate register.
Xxxxxx introduces ESPP as a novel research domain in English language and linguistics, dedicated to investigating the efficiency and effectiveness of both native and non-native English speakers in professional contexts. She advocates for the development of this research area within and beyond academia as a corrective measure to the European tradition of ESP. The aim is to reinforce the notion that this longstanding tradition of teaching and researching ESP can be revitalized and fortified to facilitate both personal and professional growth for learners. While the demands from professionals across various fields are substantial, and there is a considerable body of academic studies on the subject, specific research inquiries into written and oral communication requirements in second-language and foreign-language contexts for the world of work still appear to lack adequate and satisfactory answers.
2.2 General features of specialized discourse: overview
As briefly mentioned in the previous section, specialized discourse is not a homogeneous entity, but rather a heterogeneous one encompassing various languages and genres, each with its distinct characteristics. As Gotti (2011a, 25) points out, “Just as general language is not a uniform entity but contains many varieties, common rules and features of specialized discourse coexist with specific ones separating each variety from the others.” As a result, specialized discourse cannot be considered as a monolithic phenomenon. Not only do different specialist fields produce various specialized languages, but each field can also be further subdivided into domains with unique characteristics (Trosborg 1997, 16).
Despite the heterogeneity, scholars have attempted to identify general traits that can be observed in specialized discourse. For instance, in his work, Xxxxxxxx (1984) provides not only a definition of Fachsprache (LSP) but also presents a list of characteristics of specialized discourse. Originally, Xxxxxxxx employs the term Fachsprache to refer to the type of communication that occurs within a specific domain (1984, 53, translated by Xxxxxxxxxxxx in Xxxxxxxxxxxx 2018, 427):
Fachsprache – das ist die Gesamtheit aller sprachlichen Mittel, die in einem fachlich begrenzbaren Kommunikationsbereich verwendet werden, um die Verständigung zwischen den in diesem Bereich tätigen Menschen (und die Popularisierung der fachlichen Inhalte sowie den Kontakt zu bestimmten Nicht-Fachleuten) zu gewährleisten.
[LSP is the sum of all the linguistic resources used in an area of professional communication to enable mutual understanding between professionals in the area (and to communicate the specialist content to the general public and maintain contact with selected lay people)]
Approximately a decade later, Xxxxxxxx (1993) abandons the use of the term Fachsprache and employs the term Fachkommunikation (specialized communication), which he defines as follows (Xxxxxxxx 1993, 614, translated by Xxxxxxxxxxxx in Xxxxxxxxxxxx 2018, 427):
Fachkommunication ist die von außen oder von innen motivierte bzw. stimulierte, auf fachliche Ereignisse oder Ereignisabfolgen gerichtete Exteriorisierung und Interiorisierung von Kenntnissystemen und kognitiven Prozessen, die zur Veränderung der Kenntnissysteme beim einzelnen Fachmann und in ganzen Gemeinschaften von Fachleuten führen. [Specialised communication is the externalisation and internalisation, whether motivated or stimulated from the outside or from the inside, of knowledge systems and cognitive processes
related to specialised information, which leads to change in individual experts’ knowledge systems and in the knowledge systems possessed by entire communities of specialists.]
This definition, along with the definition mentioned above and provided by Xxxxx (2011a, 24) on specialized languages that is mentioned in Section 2.1, focuses on the importance of a ‘community of specialists’ sharing specialized knowledge within a specific field and utilizing specialized language in that domain. Moreover, Xxxxxxxx’x definition suggests that specialized discourse “cannot focus solely on isolated linguistic features, such as individual words, syntactic structures, etc.” but rather “provides a perspective that considers knowledge and the transformation of knowledge systems to be an integral part of domain-specific communication” (Xxxxxxxxxxxx 2018, 427).
As previously mentioned above, Xxxxxxxx (1984, 31, quoted in Gotti 2011a, 29) also provides a list of ‘desirable qualities’ of specialized discourse:
1. Exactitude, simplicity and clarity;
2. Objectivity;
3. Abstractness;
4. Generalization;
5. Density of information;
6. Brevity or laconism;
7. Emotional neutrality;
8. Unambiguousness;
9. Impersonality;
10. Logical consistency;
11. Use of defined technical terms, symbols and figures.
Such a list presents flaws in its structure, notably the inconsistency of certain categories, such as exactitude and simplicity, and the repetition of others, such as clarity and unambiguousness. Furthermore, such qualities are overly general, as “not all criteria mentioned by Xxxxxxxx are applicable to all specialized languages, and likewise the criteria chosen for a given specialized language are not always applicable to its various genres” (Gotti 2011a, 30).
In his work, Gotti (2011a, 30) also reports that such a list presents inconsistencies, as some qualities may conflict with each other. As a matter of fact, it is not specified which quality is dominant in a situation of conflict. Xxxxx et al. (1980, 314) discuss this issue by identifying
three main criteria that should be used to assess the effectiveness of communication in specialized discourse. The identified criteria include economy, precision, and appropriateness, and they are dominant in specialized discourse. According to Xxxxx et al. (1980, 315): (1) the concept of economy deals “with all aspects of the reduction of effort in the transmission of information”; (2) the concept of precision is concerned with “the association of an expression with a well-defined region of the knowledge space”; (3) finally, appropriateness implies that the message should enable the audience “to localise accurately the area of knowledge which is the subject of the discourse, as well as achieving the intention in as effective a manner as possible”. Such criteria are interdependent, as specialized communication achieves maximum efficacy of communication when they are all satisfied. However, if economy and precision conflict with each other, appropriateness is the one criterion to arbitrate between them, thus becoming the dominant one over the other two.
Since Sager et al. approach language by considering it the outcome of decisions made by specialists within a ‘global semiotic dimension’, Xxxxx considers their work as a landmark in specialized discourse studies and as “an effort to move beyond the mere description of linguistic phenomena” by offering “a practicable approach to their interpretation” (2011a, 31). In his comprehensive analysis, Xxxxx (2011a) proceeds to identify the main lexical, syntactic and textual features of specialized discourse. Such distinctive traits can be summarized as follows:
Lexical level:
● Monoreferentiality;
● Lack of emotion;
● Precision;
● Transparency;
● Conciseness;
● Conservatism;
● Ambiguity;
● Imprecision/fuzziness;
● Redundancy.
Syntactic level:
● Omission of phrasal verbs;
● Expressive conciseness;
● Premodification;
● Nominalization;
● Lexical density;
● Sentence complexity;
● Sentence length;
● Use of verb tenses;
● Use of the passive;
● Depersonalization; Textual level:
● Anaphoric reference;
● Use of conjunctions;
● Thematic sequence;
● Argumentative patterns.
Acknowledging the diverse nature of specialized languages, it is evident that certain features may not universally apply and, in some instances, may even present contradictions, as will be elaborated in subsequent subsections and paragraphs. Each feature will be scrutinized individually.
This study recognizes the non-monolithic nature of specialized languages. Specialized discourse is considered as a heterogeneous phenomenon, and LSP is considered as an umbrella term that can be divided into various domains that involve linguistic diversification (Trosborg 1997, 15). As Gotti (2011a, 10) points out,
[S]pecialized languages must be taken into consideration separately or grouped by level, genre, etc. The latter view is arguably confirmed by the findings of several studies and authors working with different texts, fields and specialized genres. The results drawn from one field cannot per se be extended to others; the findings of a given genre call for adjustment and additions if applied to another.
This study therefore considers legal language as a specific area of specialized languages. More specifically, it underscores the importance of discerning between different types of genres within the same legal domain (see Section 2.3).
2.2.1 Lexical features of specialized discourse
Specialized languages, as previously discussed, possess distinctive characteristics that differentiate them from general language. It is imperative to clarify that not all of these
characteristics are universally applicable to every specialized language. For instance, monoreferentiality is one of the most salient lexical features of specialized discourses identified by Xxxxx, and it indicates that each term is only assigned one referent and is “limited to the disciplinary field in which a term is employed” (Gotti 2011a, 33-34). This means that in a given context, each term is only allowed one meaning (Maci 2018, 27). Such a principle arose during the 17th-18th century as a response to the necessity to replace existing imprecise terms with new ones, which were usually drawn by classical languages in order to achieve greater monoreferentiality. Nevertheless, this principle does not occur in all specialized languages. For instance, in the case of legal or business languages, conservatism is preferred and “Old formulae are preferred to newly-coined words because of their century- old history and highly codified, universally accepted interpretations” (Gotti 2011a, 41).
Precision stands out as another important lexical feature in specialized discourse. Xxxxxxxx from the need for accuracy that arose after the scientific revolution of the 17th century, precision dictates that “every term must point immediately to its own concept” (Gotti 2011a, 36). However, this conflicts with the needs of certain types of specialized languages. In legal language, for instance, a certain degree of vagueness and fuzziness is unavoidable (Xxxxxxxx, 2000). On the one hand, legal texts require determinate and precise drafting, while, on the other hand, they need to be all-inclusive22 (Bhatia 1987, 1). This is because “the draftsman tries to make its provision not only clear, precise and unambiguous, but all-inclusive too” (Xxxxxx 1993, 191) in order to “cover every relevant situation” (Xxxxxx et al. 2005, 10).
The lack of emotive connotations is another noteworthy feature of specialized discourse, particularly emphasized when monoreferentiality and precision are employed as they “carry within them a denotative meaning” (Maci 2018, 27). Indeed, the tone used in specialized discourse tends to be neutral “as its illocutionary force derives from the logical, consequential arrangement of concepts and of supporting evidence rather than the use of emphatic language” (Gotti 2011a, 35-36). However, if the pragmatic purpose is persuasive, as in the case of advertisements or argumentative texts, figurative and emotive language is employed to convince the audience.
Conciseness is a crucial aspect of specialized lexicon, closely connected with precision and monoreferentiality as well (Maci 2018, 27). It implies that “concepts are expressed in the shortest possible form”, thus leading to a “reduction in textual surface” (Gotti 2011a, 40).
22 As Xxxxxx observes, since legal texts need to be both precise and all-inclusive, it is not always an easy task to reconcile these two requirements. He points out that “One of the many linguistic devices which make this possible is the use of nominalizations, others include the use of qualificational insertions, complex-prepositions, syntactic discontinuities, binomial and multi-xxxxxx expressions” (1993, 274).
Such a feature, however, is in contrast with the feature of redundancy, observed in some specialized languages occurring when “the number of lexemes employed is far higher than necessary” (Gotti 2011a, 50). This can be observed, for instance, in legal texts (Xxxxxxxxxx, 1984). Indeed, in some cases texts contain two similar terms that refer to the same concept (see Paragraph 2.4.2.1). Such collocations contain “two synonyms, or near synonyms, [that] are coordinated, sometimes in quite extensive lists, but more usually in pairs: made and signed, terms and conditions, able and willing” (Xxxxxxx and Xxxx 1969, 208).
Finally, transparency, another important lexical feature of specialized discourse, is imperative for precision (Maci 2018, 28),. It refers to “the possibility to promptly access a term’s meaning through its surface form” and it derives from the assumption that “as an idea should refer directly to the facts observed, likewise the terms used should immediately suggest the idea they express” (Gotti 2011a, 37-38). When making a text transparent, “the surface form of a lexical element, be it a word or an affix, immediately identifies a concept, freeing it from ambiguity and polysemy” (Maci 2018, 28).
The lexical features mentioned in this subsection are all typical of specialized discourse. However, the various existing specialized languages do not exhibit all these features. Indeed, some of them even contrast with each other: monoreferentiality contrasts with conservatism, the lack of emotion contrasts with the pragmatic function of some specialized texts that aim at persuading the audience, precision contrasts with imprecision and vagueness, conciseness contrasts with redundancy, and transparency contrasts with ambiguity.
2.2.2 Syntactic features of specialized discourse
Specialized discourse presents distinct patterns at the syntactic level as well. First of all, a crucial feature is represented by the omission of phrasal elements of sentences to enhance conciseness (Gotti 2011a, 68). This includes the omission of articles, verbs and prepositions, aligning with the principle of conciseness discussed in the previous subsection (2.2.1).
According to Xxxxx, expressive conciseness is another strategy that is often used in specialized texts to make sentences more succinct. This can occur through the “substitution of relative clauses with adjectives usually obtained by means of affixation” (Gotti 2011a, 69), through the omission of subject and auxiliary, or by turning the verb of the relative clause into its past participle form and placing it after the noun. This strategy also complies with the principle of conciseness as well as with the principle of transparency (see Subsection 2.2.1).
Premodification is another important syntactic feature in specialized discourse. In English, premodification entails a right-to-left construction that “shortens sentences and makes the noun phrase especially dense”23 (Gotti 2011a, 73). More specifically, in such a process “lexical items with an adjectival function are left-dislocated with regard to the head-noun and, thus, modify the qualities or properties of the latter” (Maci 2018, 32). According to Xxxxx et al. (1999), there are four types of noun premodification: (1) general adjective (e.g., foreign markets), (2) ed-participial modifier (e.g., restricted area), (3) ing-participial modifier (e.g., growing economy), (4) noun modifier (e.g., market forces). While premodification allows to make texts more concise, it is acknowledged that this feature might also lead to ambiguity24 and losses of conceptual clarity.
Nominalization represents another important syntactic feature of specialized discourse that “involves the use of a noun instead of a verb to convey concepts relating to actions or processes” (Gotti 2011a, 77). Nominalization is included by Xxxxx et al. (1985) in the category of noun phrases. However, in his work, Xxxxxx (1993, 148) points out that nominalization should be distinguished from nominal expressions such as complex nominal phrases and nominal compounds. Nominalization complies with the principle of conciseness (see Subsection 2.2.1), as it allows for ‘syntactic compression’ and easier text construction and communication flow (Biber and Gray, 2013). This feature simultaneously enhances precision and all-inclusiveness. This is particularly true with regard to legal texts, in which case they are employed for a twofold reason:
First, of course, to refer to the same concept or idea repeatedly and, as in academic and scientific discourse, this promotes coherence and saves the writer from repeating lengthy descriptions. Second, and perhaps more typically, it is a convenient device to refer to as many aspects of human behaviour as required and, at the same time, to be able to incorporate as many qualificational insertions as necessary at various syntactic points in the legislative sentence. The use of nominal rather than verbal elements is likely to provide ‘more mileage’ for the legislative writer, when one of his main concerns is to be able to cram detail after detail and qualification after qualification in his sentence. (Bhatia 1993, 275)
23 As Gotti states, “A distinctive aspect of the right-to-left pattern is nominal adjectivation, i.e. the use of a noun to specify another with an adjectival function. This type of specification can cover such features as the material of which an item is made (e.g. ferrite core, paper tape, silicon chip), its use (e.g. access arm, load program), its function (e.g. control byte) and others” (2011a, 73).
24 It is important to mention that in premodification cases, although at first glance they might appear to make the text more ambiguous, such an ambiguity is often just apparent “because specialist knowledge helps the addressee to rule out inappropriate meanings in the decoding process” (Gotti 2011a, 76).
By using nominalizations, legal texts therefore appear more compact and precise as well as all-inclusive. Furthermore, they also result in texts that present a high level of lexical density, an additional syntactic feature of specialized discourse involving “a high percentage of content words within a text” (Gotti 2011a, 81) and containing more complex sentences. As Gotti states, sentences containing nominalizations are
simpler in terms of linearity because conceptual complexity is expressed by syntactic and semantic relations within noun phrases. Textual comprehension is easier, therefore, thanks to simplified surface structure but the lexical density of the sentence and the complex patterning of the noun phrases makes interpretation more demanding. (Gotti 2011a, 83)
Lexical density is not only a consequence of nominalizations, but also of premodifications. As Xxxx claims, the use of premodification “within a sentence with syntactical and semantic complexity at the noun-group level (micro-level) gives rise to greater syntactical and semantic complexity at the sentence level (macro-level)” (2018, 32). In addition, while nominalizations simplify the surface structure of sentences, the resulting lexical density and intricate arrangement of noun phrases make interpretation more demanding (Gotti 2011a, 83), thereby enhancing sentence complexity, an additional noteworthy syntactic feature identified by Xxxxx.
In specialized languages, sentences also tend to be longer than those in general language. This tendency is particularly evident in legal texts, where length is employed to minimize ambiguity and fuzziness (Gotti 2011a, 85), addressing the primary objective of averting misinterpretations and misunderstandings (Xxxxxxxxxx 1975; Xxxxxxxx 2001).
Finally, at the syntactic level specialized languages are also characterized by the use of specific verb tenses25, the use of the passive voice – which “allows the thematic element to identify a given information, while new information is normally presented rhematically” (Gotti 2011a, 96) – and consequent depersonalization, which involves the omission of the subject-speaker and a reduction in direct references to the interlocutor.
Some of the discussed syntactic features comply with the principles characterizing specialized languages at the lexical level that are discussed in the previous subsection. For instance, the omission of phrasal elements and the use of premodification align with the
25 According to Xxxxxx (1985, 8 quoted in Gotti 2011a, 90), in English scientific texts the following ten tenses are mainly used: Present Simple Active (64%), Present Simple Passive (25%), Future Simple Active (3.7%), Present Perfect Passive (1.7%), Present Perfect Active (1.4%), Past Simple Active (1.2%), Past Simple Passive (1.2%), Future Simple Passive (0.7%), Present Progressive Active (0.6%), Imperative (0.3%).
principle of conciseness, thus contrasting with other lexical features that are not compatible with such a principle, such as the principle of redundancy. As a result, the syntactic features described in this subsection, akin to the ones identified at the lexical level (Subsection 2.2.1), are not universally present in all types of specialized languages but only in some of them.
2.2.3 Textual features of specialized discourse
Important features are also used in specialized languages to increase textual cohesion26. For instance, according to Xxxxx (2011a) anaphoric references are an important textual feature of specialized languages, serving to improve clarity and to prevent ambiguity. As highlighted by Xxxxxxxx and Xxxxx, in every language there are specific items that “have the property of reference”, which “instead of being interpreted semantically in their own right, they make reference to something else for their interpretation” (1976, 31). Specifically, in English such items are personals, demonstratives and comparatives27. The entity to which reference is made can be identified through either situational reference or textual reference. Situational reference, or exophora, involves identifying the thing in the context of the situation, while textual reference, or endophora, identifies the thing within the surrounding text. Reference items can therefore be categorized as exophoric or endophoric. If they are endophoric, they can be either anaphoric or cataphoric, as illustrated in Figure 2.3.
26 In linguistics, ‘text’ is the term used to refer to “any passage, spoken or written, of whatever length, that does form a unified whole” (Xxxxxxxx and Xxxxx 1976, 1). Furthermore, a text is characterized by texture, which means that the text is described as a unity and, as a result, “there will be certain linguistic features present in that passage which can be identified as contributing to its total unity and giving it texture” (Xxxxxxxx and Xxxxx 1976, 2). To this end, specific textual features can provide cohesion to sentences and, therefore, to a text.
27 Such items signal that the information is “to be retrieved from elsewhere” (Xxxxxxxx and Xxxxx 1976, 31). As a matter of fact, they represent an important linguistic tool for cohesion. As Xxxxxxxx and Xxxxx further state, “What characterizes this particular type of cohesion, that which we are calling reference, is the specific nature of the information that is signalled for retrieval. In the case of reference the information to be retrieved is the referential meaning, the identity of the particular thing or class of things that is being referred to; and the cohesion lies in the continuity of reference, whereby the same thing enters into the discourse a second time” (1976, 31).
Figure 2.3: Exophoric and endophoric reference items (Xxxxxxxx and Xxxxx 1976, 33).
Exophoric items are those items which do not explicitly name anything but rather signal “that reference must be made to the context of situation” (Xxxxxxxx and Xxxxx 1976, 33). Exophoric reference, therefore, relies on the context for comprehension. On the contrary, endophoric references are general names used for reference within the text. However, in both cases a presupposition must be satisfied, namely that “the thing referred to has to be identifiable somehow” (Xxxxxxxx and Xxxxx 1976, 33).
Anaphoric references refer to something mentioned earlier in the text, providing cohesion to specialized language texts. Instead, in cataphoric references the item refers to something mentioned later in the text.
Another textual feature contributing to cohesion is specialized languages, as well as to clarify “the purpose of the sentence that follows” (Gotti 2011a, 107), is the use of conjunctions. As Xxxxxxxx and Xxxxx (1976, 226) claim
Conjunctive elements are cohesive not in themselves but indirectly, by virtue of their specific meanings; they are not primarily devices for reaching out into the preceding (or following) text, but they express certain meanings which presuppose the presence of other components in the discourse.
The term ‘conjunction’ is defined by Malmkjaer as “an indeclinable part of speech that links other parts of speech, in company with which it has significance, by clarifying their meaning or relations” (1991, 248). As a matter of fact, they “contribute to a better understanding of the use of discourse and they affect the way how texts are perceived” (Xxxxx 2005, 4). The most frequently used conjunctions (Leech and Xxxxxxxx 1994, 264; Xxxxxxxxx and Xxxxx 1993, 263) are and, expresssing an additive relation; or, functioning as a disjunctive conjunction; and but, expressing an adversative relation although containing “within itself
also the logical meaning of ‘and’” as it is “a sort of portmanteau, or shorthand form, of and however” (Xxxxxxxx and Xxxxx 1976, 237).
The sequence of thematic items – topic, theme or point of departure (Xxxxxxxx 1985, 38) – and rhematic items – which contain what is said about the theme and usually involves new information – is another important object of study in specialized discourse28. Usually, the theme is the subject and appears at the beginning of the sentence. This structure is also generally employed in specialized languages; however, in some cases “the specialist appears highly aware of the advantages of placing certain information items in thematic rather than rheumatic position or vice versa, and through skilful use of such devices he is able to enhance the text’s pragmatic values” (Gotti 2011a, 111).
Furthermore, another crucial textual feature of specialized discourse is its argumentative pattern. Argumentation, as a general concept, involves reasoning and refers to the “process of arguing in favour of, or against, a point of view, a course of action, an opinion, etc.” (Aarts 2001, 171). Within the field of specialized discourse, argumentation specifically involves a process of “reduction of certainty” (Xxxxx 2011a, 136).
Although the process of argumentation varies in different argumentative specialized texts, “there is an overall pattern underlying most texts” (Gotti 2011a, 131). Xxxxx argues that “Even in the hard sciences and in objective demonstrations, the role of evidence brought in favour of a given claim depends largely on the use of language” (2011a, 131). Xxxxxx also supports this perspective, stating that “It is sometimes thought that the facts ‘speak for themselves’ – that a scientist’s description of natural reality, if it is carefully and completely done, is simply a reflection of that reality”; however, “[f]acts are constructed. Phenomena only acquire fact-like status by consensus and that consensus is only achieved by rhetorical persuasion” (Xxxxxx 1986, 17, quoted in Gotti 2011a, 132).
According to Xxxxxx, Xxxx and Xxxxxxx (2008, 1-2), there are three main forms of arguments: deductive, inductive and defeasible. The deductive argument is one in which “the premises, arranged on a general-to-particular pattern, preclude that the conclusion is false, therefore if the premises are accepted also the conclusion must be accepted, as is the case in the modus ponens” (Degano 2012, 142, based on Juthe 2005, 2). Secondly, the inductive argument is one in which the argument is formed “from a collected set of data to a statistical conclusion drawn from the data” (Degano 2012, 142, based xx Xxxxxx, Xxxx and Xxxxxxx
28 The terms ‘theme’ and ‘rheme’ derive mainly from the theory of Systemic-Functional Grammar. These concepts have been discussed since the 18th century, as in his work Weil (1844) refers to them as ‘point of departure’ and ‘enunciation’. Furthermore, other linguists have referred to them as ‘topic’ and ‘comment’ (Xxxxx, 1976), and ‘topic’ and ‘dominance’(Erteschik-Shir, 1988). However, currently they are mostly referred to as ‘theme’ and ‘rheme’ due to Xxxxxxxx’x (1968, 1985) works.
2008, 10), thus arranging a particular-to-general pattern. Finally, the defeasible argument is characterized by the fact that it “is only plausible and is often resorted to in conditions of uncertainty and lack of knowledge” as it “supports inference under conditions of incompleteness by allowing unknown data to be presumed” (Xxxxxx, Xxxx and Xxxxxxx 2008, 10). Therefore, although this type of argument might initially be accepted, it can then be defeated once new evidence or information is provided (Xxxxxx, Xxxx and Xxxxxxx 0000, 7). The main difference between deductive or inductive arguments and defeasible arguments lies in the following:
In deductive logic, if someone to whom an argument is directed accepts the premises of the argument, and the argument is deductively valid, that person must accept the conclusion. If he does not, he is in a position of inconsistency, a position that is logically untenable. However, defeasible schemes are not binding in this way, because it is open to the person to whom the argument is directed to ask critical questions about it before having to accept a conclusion. (Xxxxxx, Xxxx and Xxxxxxx 0000, 7)
Defeasible arguments, also referred to as presumptive or abductive, encompass argumentation from analogy, prominently employed in legal language, especially in Anglo- American law. Other forms of argumentation, such as the argument from precedent in law, which is typical of Anglo-American law, derive from this, making it particularly relevant for the purposes of this study (see Chapter 5).
2.3 Legal language
This study focuses on both language and law and on their “particular interrelation” (Galdia 2009, 63). The relationship between law and language is indeed very close29. As Xxxxxxx states, the law is “such an important and influential institution”, and it is “packed with language problems” (2004, 285). It is evident that law and language are inseparable; as Galdia (2009, 63) asserts, law cannot exist independently of language, emphasizing that law fundamentally relies on language. In a similar vein, Glogar emphasizes that “[l]anguage is not only essential for understanding the law and comprehending its content, it is the very foundation of the existence of law” (1082, 2023).
The philosophical interest in language in the legal context has been in the spotlight for a very long time. This is not only because effective linguistic communication aids legal professionals and stakeholders in grasping legal concepts but also because scrutinizing language in this context facilitates an understanding of “how legal directives can convey the kind of legal content they aim to convey” (Marmor 2014, 1). As Xxxxxx states, “Language plays an important role in the construction, interpretation, negotiation, and implementation of legal justice” (2006, 1).
‘Legal language’ is the label that is generally used to refer to “one of the languages for special purposes, as a result of which it has certain characteristics which differ from ordinary language, for example, on the level of syntax and style” (Xxxxxxx 2012, 27). While legal language possesses unique attributes as a specialized language, it is based on general language. However, in literature alternative expressions have been used to indicate this very concept, as Xxxxxxxx confirms by stating that “[b]ooks and articles which deal with law and language will tend to include expressions such as legal language, the language of the law or (less commonly) the language of legal documents” (2007, 23). The expression ‘legal language’ is used by Xxxxxxxx as “an umbrella term to refer to legal discourse in general” (2007, 23). However Xxxxxxxx, for instance, uses the expression ‘the language of the law’ to refer to the “language as realized specifically in legal documents, i.e. texts covered by the scope of statute law and common law, namely (i) legislation, and (ii) simple contracts and deed” (1995: 32), thus using it to refer to a specific area of legal language.
What emerges from various studies is that legal language is not a uniform or monolithic phenomenon (Glogar 1096, 2023), aligning with the nature of specialized languages, as discussed in Section 2.1. Xxxxxxx affirms this by noting that “[e]ven if we limit ourselves to
29 See inter alia Xxxxxxxxxx 1963; Xxxxx 1994; Xxxxxxx 1994, 2004; Sacco 2005; Xxxxxxx and Xxxxx-Xxxxxxxxxx 2007; Marmor 2014.
the written variety, there is substantial variation among different genres of documents” (1999, 141). Xxxxx concurs, stating that there is not a single type of legal language but rather “a set of related legal discourses” (1994, 13). This perspective is consistent with Xxxxxx’x (1987a, 227, also 1993, 187) thought as well, as he uses the expression ‘legal language’ as a term that
encompasses several usefully distinguishable genres depending upon the communicative purposes they tend to fulfil, the settings or contexts in which they are used, the communicative events or activities they are associated with, the social or professional relationship between the participants taking part in such activities or events, the background knowledge that such participants bring to the situation in which that particular event is embedded and a number of other factors.
As a matter of fact, Xxxxxx asserts the significance of making genre distinctions, which can be observed in the different lexico-grammatical, semantico-pragmatic and discoursal resources employed in legal texts. To establish such genre distinctions, it is first fundamental to distinguish between spoken and written30 texts, followed by the identification of various legal genres (Bhatia 1987a, 227) and the context in which the particular act is performed (Glogar 1105, 2023). Xxxxxx identifies some of the major genre distinctions in Figure 2.4:
Figure 2.4: Language of the law: major genre distinctions (Xxxxxx 1987a, 227).
30 According to Xxxxxx, legislative writing is “highly impersonal and decontextualized, in the sense that its illocutionary force holds independently of whoever is the ‘speaker’ (originator) or the ‘hearer’ (reader) of the document. The general function of this writing is directive, to impose obligations and to confer rights” (1993, 189).
Within the language of the law, various genres are therefore identifiable in different legal settings (Glogar 1096, 2023). Some of these include “cases and judgements in written form used in juridical settings; lawyer-client consultation, counsel-witness examination in spoken form and legislation, contracts, agreements, etc. in written form used in various professional settings” (Bhatia 1993, 187). The diverse legal genres enable the creation of distinct legal texts capable of maintaining “a model world of rights and obligations, permissions and prohibitions” (Bhatia 2006, 1).
Legal language is not only characterized by specific lexical, syntactic and textual features but also by specific technical terms. According to Xxxxxxx (2012, 27), legal terms should be distinguished from legal concepts, as their interrelation is complex in law (Galdia 2009, 114). Technical terms refer indeed to “the names of concepts, their external expression. Hence a term may be defined as the linguistic expression of a concept belonging to the notional system of a specialized language”, whereas legal concepts refer to “abstract figures which are created by the human mind, that is entities formed by features which are peculiar to a matter or thing” (Xxxxxxx 2012, 27).
Legal concepts are intricately tied to specific legal systems and “often appear in one legal system or some legal systems” (Xxxxxxx 2012, 28). As Xxxxx states, “Legal concepts – within a particular legal system – are the result of the stratification of different meanings which have been developed over the course of time, and identifying these meanings is the condition precedent to any translating operation” (2012, 95). This notion is reinforced by Xxxxx (2014, 194) who asserts that
Although all legal documents in all languages address common issues, they do so in distinctive and also in overlapping ways, because of the different languages in which they are constructed and the cultural differences of the societies in question and of their legal systems. Indeed, legal terminology is so culture-bound (the reasons being at the same time historical, sociological, political and jurisprudential) that a satisfactory translation of all the legal terms of one text from one context to another is at times impossible.
Each legal system has its own historical and cultural development, which is closely related to the language employed within that system and, more precisely, to the way single words express meanings. For this reason, a direct transposition of elements from the source legal system to the target legal system is often unfeasible (Xxxxxxxx 1997, 13). This is the reason why legal translators must be equipped to identify various incongruencies among different legal systems. In this regard, familiarity with classifications by comparative lawyers
becomes invaluable. Xxxxx (1985, 20-25), for instance, has proposed the following classification that aids in understanding similarities and differences in specific legal systems:
● Romano-Germanic law (continental civil law);
● Common law;
● Socialist law;
● Hindu law;
● Islamic law;
● African law;
● Far East law.
At a global level, fundamental distinctions exist between two major and widely prevalent legal families: the common law and the civil law. While a more comprehensive exploration of these legal families will be undertaken in Chapter 3, it is pertinent to highlight in this chapter one of the primary divergences, particularly concerning the significance accorded to case law, which holds paramount importance in common law legal systems. As noted by Xxxxxxx and Xxxxxx (2002, 48), civil law is often characterized as ‘codified law’ as
the major sources of its legal norms and rules are organized codes or collections. These are normally divided into a civil code, a penal code, an administrative code, a code of commercial law, and a written constitution that stands above them all as ‘law of laws’ setting out the basic rights and principles from which all the rest are held to flow.
In contrast, common law legal systems are
partly based on the ancient rules of precedent or case-law (derecho jurisprudencial, derecho cauístico, droit jurisprudentiel, Fallrecht), i.e. the principle that the rules and judgements adopted by the higher courts in decided cases are binding in certain circumstances on lower courts hearing actions based on similar facts. (Xxxxxxx and Xxxxxx 2002, 48)
Hence, analyzing and translating legal texts means more than focusing on single words. Similar to other areas of translation, the basic unit of translation is the text along with its context, and “[s]ince legal texts are subject to legal criteria, it follows that a theory for the translation of legal texts must take account of legal considerations” (Xxxxxxxx 1997, 5). Legal texts, which are therefore contingent on legal criteria, can be accurately comprehended and, consequently, translated only when the legal translator takes into consideration the type of
legal system and the legal culture in which the text originates. Indeed, legal systems exhibit variations and there is no standardized international legal terminology. As noted by Xxxxxxx, “[i]n all languages the language of the law has its own special style, conferred upon it by the use of peculiar vocabulary, recurrent syntactic features and phraseology, specific ritual formulas and a characteristic discursive organization” (Xxxxxxx and Salvi 2007, 10). Each legal system possesses its own legal terminologies, intertwining legal language with the legal system and culture of its origin. In a similar vein, Xxxxxxxxxx (1997, 37) asserts that
La lingua giuridica pare essere una delle lingue speciali più “nazionali” che esistano. L’omogeneizzazione internazionale della lingua giuridica, e soprattutto delle sue tipologie testuali, anche in nazioni simili dal punto di vista del sistema giuridico, è molto più scarsa che in gran parte delle altre lingue speciali, dove, forse anche per il riconoscimento di un’unica lingua di prestigio e di comunicazione internazionale, le differenze tra le diverse realizzazioni nazionali si sono molto attenuate.
[Legal language seems to be one of the most “national” specialized languages that exist. The international standardization of legal language, especially its textual types, is much scarcer even in nations similar from the point of view of the legal system than in most other specialized languages. In these other languages, perhaps due to the recognition of a single prestigious language for international communication, the differences between various national implementations have been greatly attenuated.]
[my translation]
Despite this, certain features characterizing legal language can be identified across different legal languages in different legal systems (Cao 2007, 20):
● At the lexical level, legal language boasts a distinctive legal vocabulary. While each legal system possesses its unique lexicon, this terminology is universally technical and intricate across all legal languages, serving as a reflection of the law, culture, and history specific to the legal system it is associated with (Tiersma 2015, 13). It’s essential to note that legal languages exhibit unique peculiarities that may lack equivalents in other legal languages. For instance, as highlighted by Xxx (2007, 21), legal English, legal German and legal Chinese differ widely in terms of terminology. In legal English, the language is characterized by archaisms, word strings, words of over-precision (see Subsection 2.4.1). Legal German features an abstract lexicon abundant with nouns. Meanwhile, in legal Chinese, the words used are ordinary, though imbued with legal meanings.
● In all legal languages, syntax exhibits a formal and impersonal written style, with sentences typically characterized by complexity and considerable length (Xxxxx- Xxxxxxx 2004, 1173; Cao 2007, 21). Such length and complexity stem from the intricate nature of legal topics, necessitating structures that reflect the complexity of the subject matter. Legal languages are also characterized by syntactical peculiarities. For instance, legal English is marked by the use of the passive voice, multiple negations, prepositional phrases and complex structures (Xxxxxxx and Xxxxxx 2002, 19-22; Xxx 2007, 21) (see Subsection 2.4.2). Legal language is indeed a very peculiar type of specialized language due to the specific arrangement of words within sentences. Hiltunen (2012, 41) notes this uniqueness regarding the characteristics of legal language used in the genre of statutes:
Legal syntax is distinctly idiosyncratic in terms of both the structure and arrangement of the principal sentence elements. The sentence constitutes the basic syntactic unit, and is traditionally constructed as a self-contained, context-free entity. [...] Such salient features as the length and complexity of sentences, the typical organization of clauses in complex patterns of parataxis (coordination) and hypotaxis (subordination), the preference for the passive voice over the active, the extensive use of nominalized verb forms, and the avoidance of grammatical ties across sentence boundaries, including pronominal anaphoric references, may all be due, in one way or another, to the special status of the sentence, which is of overriding importance in the drafting of statutes.
However, Xxxxxxxx emphasizes that sentence length alone should not be used as a yardstick to assess the level of complexity of a legal text. Short sentences may be equally difficult to understand. To evaluate complexity, the most suitable approach is to verify how sentences are constructed. More specifically, sentences are considered user-friendly if the flow of information is not repeatedly interrupted. However, this is not always possible and the legal drafter may sometimes be forced to make a “compromise between an ideal syntactic formulation and the desired information structure of a sentence” (Hiltunen 2012, 42).
● As the language of law is performative, another important feature of legal language is the recurrent use of performative markers. This explains the common occurrence of modals such as may and shall, as well as performative verbs such as declare, announce, promise, undertake, enact, confer or amend in legal English. Furthermore, ambiguity, vagueness and other uncertainties represent additional pragmatic
characteristics of legal languages, which often contribute to misunderstandings and conflicts (Cao 2007, 22).
● In terms of style, Xxxxx highlights that legal style is the product of legal traditions, thought, and culture (1995, 190). Although in general terms all legal languages are characterized by impersonal style and declarative sentences which establish rights and obligations, each legal language has its distinctive style. For instance, as noted by Xxx (2007, 22), German law tends to establish general principles that do not refer to specific cases but rather address abstract problems and issues that may arise. Consequently, the law is drafted in an abstract and conceptual manner. This way of thinking and drafting law is a crucial characteristic that distinguishes civil law countries like Germany from the approach of common law countries. As elaborated in subsequent chapters of this study (see Chapter 3 and 5), the common law has fundamental principles as well; however, such principles are encapsulated in individual precedents, which are court decisions considered particularly relevant and establishing the grounds for general principles that guide future court decisions (Xxxxxxxx 1996; Gotti 2008b, 10; Xxxxxxxxx and Serio 2016, 267).
As Xxxxxxx states, “[a]ll legal systems develop certain linguistic features that differ from those of ordinary language” (2012, 13). Similarly, Xxx points out that “due to the differences in legal systems, many of the legal terms in one language do not correspond to terms in another” thus creating “the problem of non-equivalence, a major source of difficulty in translation” (Xxx 2007, 20). This challenge arises because all legal languages are, to varying degrees, intricately connected with a specific legal system. As previously mentioned, this connection extends beyond the specialized vocabulary that distinguishes a particular legal language; it also encompasses other linguistic features unique to legal languages. For the purposes of this study, legal English is the most relevant legal language, and its main linguistic features will be described in the next subsection.
2.4 Legal English at the global level and its main features
English is nowadays the language of global communication, serving as a vehicular language in diverse environments and workplaces, including international organizations, government departments, import-export enterprises, media, computer science and technology, international business, and various other sectors. Its widespread use has established English as the lingua franca at the international level, owing to its prominence across a multitude of fields and industries.
The global status of English (Xxx 2019, 66) is underscored by its recognition as a language with a special role in every country, a concept defined by Crystal (2003, 3). This entails that such a language takes on a special role within the communities of the countries of the world. Specifically, this can happen through two main different ways: in the first case, a specific country can make such a language the official language, used in government sectors and educational system31; in the second case, a country can make such a language the chief foreign language that is taught to children at school, even without official status (Crystal 2003, 4-6).
The spread of the English language throughout the world is described by Xxxxxx in his Three Circles Model. In this model, the inner circle consists of the “traditional bases of English”, namely those countries where English is learned as the main language such as Australia, Canada, Ireland, New Zealand, the US, the UK. The outer or extended circle includes countries where English holds a prominent role, as it is used in institutions and in the government sectors such as Singapore, India, Malaysia, Kenya. Finally, the expanding or extending circle includes those countries where English is recognized as an important language at the international level, such as China, Korea, Russia, Poland and many others. The emergence of English as a global language is often attributed to its ‘intrinsic linguistic factors’. Some specific factors are assumed to contribute to its attractiveness as an ‘easy language’ to learn. For instance, some examples include the lack of inflectional endings or the absence of grammatical gender and lexical tone (Crystal 2013, 166). However, linguists argue against these claims, asserting that “languages are equivalent in their structural complexity” (Crystal 2013, 156). Furthermore, historical perspectives reveal that both Latin and French served as international languages, with the former possessing various inflectional endings and three gender classes.
31 In this case, a language can be made the only official language of a country or can be considered as official together with other official languages of the country in question.
As Crystal (2003, 59) asserts, languages become global due to the political and military power of its speakers. In the case of English, its current status as the global language can be traced back to the expansion of the British colonial power and the rise of the United States as the predominant economic power in the 20th century. This economic dominance remains a key driving force behind English’s role as a global language.
English is therefore used in many different contexts and for many different professional purposes, including law and legal matters. As Xxxxx and Sours (2012, 5) state,
All over the world today lawyers are using English in their professional lives. Courts and arbitrators in national and international legal contexts are pronouncing their decisions in English. International organisations such as the United Nations and Amnesty International are using English as a vital instrument to achieve their objectives. In the corridors of the multilingual European Union, English is frequently the language of communication and it is one of the many languages of EU treaties and other authentic legal texts. In international trade English has become the lingua franca of modern times, permitting people and businesses around the world to interact successfully, frequently concluding contracts and resolving disputes in English even where their transaction has no link with an English- speaking country. At international level, English is not the official language or the language of the law: no language has that status. But it is certainly a major language in legal contexts in the world today.
At international level, an increasing number of legislation, contracts and other legal texts are therefore written in English.
Legal English is described as “a complex type of discourse” (Xxxxxxx and Xxxxxx 2002, 4) as it possesses specific qualities that contribute to its inherent obscurity and vagueness (Xxxxxxxx 2000, 2011; Xxxxxx et al. 2005; Xxxxxxx and Xxxxxx 2008; Xxxxxxxx 2005, 2006; Marmor 2018). According to Xxxxxxx, in English legal texts “comprehension can be impaired by linguistic features that are not specifically legal” (1999, 203). For this reason, he identifies common traits of legal English that do not facilitate comprehension. This list includes technical and unusual vocabulary, archaisms, impersonal constructions, overuse of nominalizations and passives, modal verbs, multiple negation, long and complex sentences, and poor organization (Tiersma 1999, 203-210). In his later work, Xxxxxxx, even points out that “[w]hat is particularly troubling is the stubborn persistence of archaic language and unnecessary legalese in precisely those contexts that most directly affect the rights of ordinary citizens” (2015, 31).
As can be noticed, legal English does not merely possess distinctive features at the lexical level but also at the syntactic level. Syntactic features are considered particularly characteristic of legal English compared to both ordinary language and other specialized languages. In this regard, Xxxxxx (1993, 195-202) presents a list of syntactic features that are typical of legal English, including above-average sentence-length, nominal character, complex prepositional phrases, binomial and multinomial expressions, initial case description, qualifications in legislative writing, and syntactic discontinuities. Other distinguished scholars (Xxxxxxxxxx 1963; Xxxxxxx and Xxxx 1969; Xxxxxxx 1999, 2015; Xxxxxxxx 1990; Xxxxxx 1993; Xxxxxxx and Xxxxxx 2002; Gotti 2012a; Xxxxx and Sours 2012) have extensively explored the general features of legal English. These features are discernible on two main levels, namely the lexical and the syntactic levels:
Lexical level
● Latinisms
● Terms of French/Xxxxxx origin
● Archaisms
● Repetition of specific words and expressions
● Performative verbs
● Auxiliary verbs do and shall
● Technical terms Syntactic level
● Binomials and multinomials
● Long and complex sentences
● Passive constructions
● Impersonal constructions
● Nominalizations
● Complex prepositions
Legal English is therefore a complex type of discourse characterized by complex features. Its complexity has led to descriptions of legal English as abstruse, so much so that in the 1960s consumer movements arose with the goal of empowering ordinary citizens to be aware of their rights and to defend themselves against companies and government bodies. Various organizations were therefore established with the aim of abolishing bureaucratese, officialese and legalese so as to allow everyone to understand legal documents (Xxxxxxxx 2004, 115). As Xxxxxxx and Xxxxxx (2002, 15) state,
It is arguable that a justice system genuinely concerned to safeguard ordinary people’s rights should find some means of administering the law in a language that those people can understand, and this is precisely the aim of the pressure groups and lawyers who are behind the ‘Plain English Campaign’.
The Plain English Campaign arose in 1979, evolving into the broader ‘Plain Language movement’ by the mid-1980s. This movement gained traction across major English- speaking countries, including Canada, New Zealand, South Africa and Australia, the latter emerging as a leader in the initiative (Tiersma 1999, 221). Moreover, similar movements arose with regard to other languages besides English, as in the case of Swedish with the Plain Swedish Group (Klarspråksgruppen), the case of Italian with the Progetto Chiaro!, or the case of the European Union with the ‘Fight the Fog’ campaign conducted by members of the Translators’ Service. Interestingly enough, as Xxxxxxxx (2004, 116) highlights, the objectives of such movements included different kinds of issues:
The aims are generally much broader, and may include a desire to democratize government, extend legal rights, and encourage efficiency, also by providing courses which train people in the skills of text revision and in drafting handbooks and guidelines so as to bring the language of officialdom in its various guises (which may even include taking into account design and layout as well as language) closer to the ordinary citizen.
This is also confirmed by Xxxxx (2020, XVII) who states that
clearer documents can improve people’s access to services, benefits, justice, and a fair deal. If people understand what they’re asked to read and sign, they can make better-informed choices and know more about their rights and duties. They might also see more clearly what business and government are doing.
Through the Plain Language movement, several proposals for reforming legal English have been put forward, including the following recommendations (Xxxxxxxx 2004, 117-123):
○ The replacement of archaic, rarely used and foreign terms with different words that are used in everyday speech;
○ The elimination of unnecessary words and expressions to avoid redundancy, “e.g. in the accumulation of verbs (‘release, discharge and agree’), modal auxiliaries (‘can,
shall or may’) and prepositions (‘for, upon, or by reason of’), all of which thicken the language and weigh it down” (Xxxxxxxx 2004, 121; Xxxxxxx 1995, 122);
○ The reduction of sentence length. However, this is a particularly controversial aspect, especially in the context of translation. As emphasized by Xxxxxxx and Xxxxxx (2002, 21),
Odd though it may seem, this forthright form of English writing may present difficulties for the translator, whose language may not tolerate the quickfire staccato of ‘subject+verb+object’, the dearth of connectors and the reiterative use of pronouns and deictics natural in everyday English. In other words, while complex sentences may need breaking down for translation, simple sentences may need building up.
Consequently, although many of the sentences in legal texts are excessively long, constructing shorter sentences might not be convenient for two main reasons. The first reason concerns the difficulty which might be generated for translators. The second reason concerns the fact that since the law has to provide rules that ensure certainty and avoid misinterpretation, then subordination, coordination and embedded clauses are often needed to achieve such a goal (Xxxxxxxx 2004, 122);
○ The reduction of the use of passive constructions, which represents an additional controversial aspect since such constructions are often adopted precisely with the aim of avoiding to specify the actor;
○ The reduction of the use of nominalization, which “has the effect of making [legal texts] overly abstract and impersonal, besides adding to the sheer volume of words (Xxxxxxxx 2004, 123). However, on the other hand it must be borne in mind that,
An advantage of this reification of processes and actions is that it makes them much easier to organise into an argument. It also means that they can be qualified and modified more easily – adjectives are more productive and plentiful than adverbs, verb particles such as ‘intended’ and ‘referred to’ can be used, and nouns can modify other nouns (e.g. ‘service payments’) much more freely in English than one lexical verb can modify another lexical verb. (Xxxxxxx 1994, 6f, cited in Xxxxxxx 1995, 120, and Xxxxxxxx 2004, 123)
Considering such proposals is crucial, particularly as they have the potential to prompt reflection among lawyers, drafters, and legal translators regarding the language employed in
legal texts. Implementation of these suggestions, when feasible, holds the promise of enhancing the clarity and accessibility of legal language.
However, as highlighted by Xxxxx (2012, 71-73), there are both advantages and disadvantages with regard to plain legal language. With regard to the advantages, plain legal language is more precise, as demonstrated by advocates for plain language, who argue that legal concepts can be conveyed by greater clarity by eliminating unnecessary words and other features characteristic of traditional legal language. Furthermore, in plain legal language the absolute number of errors is reduced and it is not as necessary to translate legalese back into plain language for clients, thus making the process quicker and cheaper. Plain legal language is also considered as:
- More persuasive, as “there can be no persuasion if the document is not read and understood” (Xxxxx 2012, 72);
- More democratic, as it is more accessible to the public;
- And, ultimately, less tedious and more elegant than legalese.
On the other hand, some disadvantages have been highlighted by Xxxxxxx Xxxxxxx (2007, 63-68), a British authority on legislative drafting. Xxxxxxx argues that certain legal texts, such as statutes, are drafted with the explicit purpose of being the law rather than explaining it. He therefore perceives plain language as a potential threat to legal texts, and that the latter should purposefully contain an opaque language.
In this regard, Xxx (2007, 99) provides a very interesting reflection on the Plain English movement by stating that,
Suffice it to say that legal English and legal drafting are and will remain different from ordinary English. Legal language carries distinctive markers. Law and legal texts are complex because human affairs and human relations are complex. Legal texts, both statutes and private legal documents, can certainly be improved in terms of comprehensibility and accessibility. However, legal language is not everyday language but a technical language. As stated earlier, it is a special register peculiar to its situational use in the legal setting. It is naive to think that law can be written in a language that everyone can fully understand and appreciate without reference to the legal institutional parameters and cultural histories. In terms of translation, unnecessarily long and convoluted sentences and unclear meanings will make translation more difficult. They will reduce the chance of the correct meanings being conveyed in translation and increase the probability of ambiguity and other linguistic
uncertainty. It is a point that drafters, especially those drafting bilingual or multilingual legal texts, both private legal documents and legislation, should bear in mind.
As a result, it can be inferred that although legal texts might be improved and made more readable, in some cases complex terms, notions and sentences might be necessary to convey legal concepts.
2.4.1 Lexical features of legal English
2.4.1.1 Latinisms
Legal English bears the influence of various languages, with Latin playing a significant role (Xxxxxxxxxx 1963; Xxxxxxx and Xxxx 1969; Tiersma 1999; Xxxxxxx and Xxxxxx 2002). This influence can be traced back to the development of English law in the Middle Ages when Latin served as the lingua franca in Europe for international communication, intellectual exchanges, science, and other vital domains. Consequently, legal English is marked by latinisms because “it has not escaped the influence of Roman law and the Latin in which it was administered” (Xxxxxxx and Xxxxxx 2002, 5). Roman law, being a powerful and coherent written system, inevitably left its imprint on the texts and professional discourse of English lawgivers who shared a common culture with their counterparts elsewhere (Xxxxxxx and Xxxxxx 2002, 5). Latinisms – together with other features that will be analyzed in the subsequent paragraphs of this chapter – have been the object of criticism and reforms presented by the Plain English movement (Xxxxxxxx 2004; Butt and Castle 2013). Examples of Latin expressions commonly used in legal English include: prima facie, bona fide, res iudicata, ex aequo et bono, ipso iure, de facto, pro bono, subpoena.
2.4.1.2 Terms of French/Norman origin
In addition to Latin, legal English incorporates words and expressions derived from other foreign languages, most notably French. With regard to French terms and expressions, they are also described as terms of Xxxxxx origin as a result of the Xxxxxx invasion of 1066 and the subsequent Xxxxxx domination of England. Most French words are still used today in
legal English and have become assimilated into English usage; however, specific terms have preserved their ‘Frenchness’, as in the example of profits à prendre32 (Xxxxxxxx 2004, 112). Furthermore, the interaction between Old French, Xxxxxx, and Old English has influenced the rules of word-formation in Legal English. For instance, Xxxxxxx and Xxxxxx highlight the impact of this linguistic contact by providing a list of the most common legal terms ending in ‘-age’, which “came into the language via French and bear indemnity, prize, reward, contribution, and so on” (2014, 6): salvage; average; beaconage; towage; pilotage; demurrage; anchorage; damage.
2.4.1.3 Archaisms
Legal English often incorporates archaisms, including a clear preference towards the use of the suffix -eth, as seen in terms like ‘witnesseth’, meaning “to certify a legal document or a fact as a witness” (Xxxxx and Sours 2012, 359). Additional archaisms include compound adverbs based on the deictics ‘here’, ‘there’, ‘where’, “often referring to the text or document in which they appear or to one under discussion” (Xxxxxxx and Xxxxxx 2002, 9). Examples include: hereto; hereon; hereunder; hereby; herein; hereinbefore; thereof; whereof; whereas; aforesaid; hath been. The use of such expressions can be noticed, for instance, in Regulation (EU) 2021/887 of the European Parliament and of the Council of 20 May 2021 establishing the European Cybersecurity Industrial, Technology and Research Competence Centre and the Network of National Coordination Centres, which employs sentences like the following: “Having regard to the Treaty on the Functioning of the European Union, and in particular Article 173(3) and the first paragraph of Article 188 thereof, [...] Whereas [...]” [my emphasis].
Additional examples include prepositional phrases, such as: pursuant to; without prejudice to; subject to; at the motion/instance of; notwithstanding (Xxxxxxx and Xxxxxx 2002, 9).
Similarly to Latinisms (see Paragraph 2.4.1.1), archaisms have also faced criticism and calls for reform from the Plain English movement, which views them as one of the elements that prevents “a full understanding of a legal text” and through which “the legal profession has managed to preserve its exclusionary hold over legal language” (Xxxxxxxx 2004, 117-118).
32 The French expression profits à prendre indicates “the right of common, where one has the right to take the fruits of the property of another” (Xxxxxxxx 2004, 112).
2.4.1.4 Repetition of specific words and expressions
While drafting legal texts, the main objective is to produce precise and unambiguous sentences (Xxxxxx 1993, 80). This is reinforced by Xxxxxxx and Xxxx (1969, 202) who note that lexical items are often repeated in legal texts to avoid uncertainty and misinterpretation. Specifically, in legal English a notable occurrence of repeating specific words, expressions and syntactic structures is observed. Nouns are typically not substituted by pronouns or other types of anaphoric references, as can be noticed in the following example taken from Title I Article 1 of the Treaty on European Union 1992:
The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community. [my emphasis]
Such repetitions are therefore used to make sure that there is the least possible uncertainty as to what is being referred to (Xxxxxxxx 2004, 113).
Moreover, common repetitions often include the following lexical items (Xxxxx and Sours 2012, 362): in accordance with, in respect of, pursuant to, in pursuance of, implementation of, measures adopted by, deliver opinions at, ensure that the, be composed of, for the purpose of, by virtue of. An example of the repetition of the expression ‘in accordance with’ can be observed in recital (13) of the Regulation (EU) 2022/1280 of the European Parliament and of the Council of 18 July 2022 laying down specific and temporary measures, in view of Russia’s invasion of Ukraine, concerning driver documents issued by Ukraine in accordance with its legislation:
Since the objective of this Regulation cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.
[my emphasis]
2.4.1.5 Performative verbs
Performative verbs are ubiquitous in legal English. “Explicit performative utterances are those whose illocutionary force is made explicit by the verbs appearing in them” (Xxxxxx 1962, quoted in Xxxxxxx and Xxxxxx 2002, 10). As highlighted by Xxxxxxx and Xxxxxx, “The number of such [performative] verbs in a given language is necessarily quite small, but given the binding nature of legal relationships and judicial decisions, verbs of this type are used particularly frequently in legal texts and contexts” (2002, 11).
Performative verbs are particularly common in legal English because they enable individuals to establish or modify a state of affairs simply by stating it (Tiersma 1999, 104). Some of the most prevalent performative verbs include: agree, admit, recognize, allow, pronounce, declare, uphold, affirm, certify, overrule, do. The verb ‘do’ is especially recurrent in legal English, particularly in declarative sentences. Furthermore, ‘do’ “often fulfills the same function as hereby”, as “[w]hen the legislature says or writes we do enact or we hereby enact (and assuming other aspects of the ritual are performed), it is actually enacting something into law merely by uttering those words” (Tiersma 1999, 104-105).
2.4.1.6 Modal auxiliary shall
An important feature of legal English is the recurrent use of the verb shall. As Xxxxxx claims, “In a sense, shall is stronger than must, in that it does not merely lay an obligation, however strong, but actually guarantees that the action will occur” (1990, 74), making it a common formulaic form in regulations. Modal verbs, in general, “contribute crucially to the realisation of the speech acts that constitute a legal text’s pragmatic force and legal validity” (Garzone 2013, 68). However, shall has a particularly relevant role in legal texts, with Xxxxxx even asserting that “shall is the most important word in the world of legal drafting – contracts, xxxxx, trusts, and the many forms of public and private legislation (from statutes to court rules to corporate bylaws)” because “[s]hall is the very word that is supposed to create a legal duty” (1992, 61).
Specifically, as Tiersma (1999, 105-6) observes, shall is usually employed in general English to express the future. However, in legal English it is used for several purposes, such as expressing a command or obligation, making declarations, articulating the terms of a contract, and indicating that something is intended to be legally binding (Bondi and Xxxxx 2010, 10-11). As can be deduced, “Its function seems to depend on the type of document in which it occurs” (Tiersma 1999, 106). Shall is therefore used as a ‘totem’ in legal language
(Xxxxxx 1989, 294, quoted in Tiersma 1999, 106) and this seems to be the reason for its pervasiveness in legal English.
The use of shall in legal discourse has been a subject of attention for institutional bodies, linguists, and philosophers of law, leading to significant debates and reflections (Garzone 2013, 68). Specifically, with the emergence of the Plain English movement, scholars have thoroughly investigated the use of shall (Xxxxxx 1990; Garzone 2001, 2013; Xxxxxxxx 2005, 2006, 2009; Gotti 2011b; Xxxxxx 2023) and criticized it due its unambiguous nature. Xxxxxx, for instance, suggested giving up on shall completely and to use must instead (1992, 69). In a similar vein, Xxxxxx also proposed to abandon shall and to use the following alternatives (1992, 79):
● Must for the imperative shall, as in the case of obligation or duties to impose, or directions to make;
● Will for the simple future;
● The present tense for everything else, as in the case of statements of facts, legal results or agreements.
Garzone’s (2013, 71) research indicates a recent decrease in the use of shall in UK legislative writing. It remains an intriguing prospect to observe how, and if, its use will further evolve in various legal genres in the future.
2.4.1.7 Technical terms
In Legal English, a plethora of technical (or legal) terms, not commonly used in general English or used with a different meaning, are prevalent (Tiersma 1999, 106). According to Xxxxxxx (2012, 33) legal terms may be created in three primary ways:
● An existing word in ordinary language (in the language in question) may acquire a specialized or enlarged meaning in legal contexts through spontaneous linguistic evolution;
● A term may borrowed from a foreign legal language;
● A new term or neologism may be created.
Furthermore, legal English includes terms derived from other professions, including commerce, technology, land surveying, and social work. It also includes words from the
register of style, such as ‘misrecollection’ instead of ‘forgetting’, and Latin expressions of a cultural nature, such as in casu (in the present case, in each particular case) or ultima ratio (the final argument) (Xxxxxxx 2012, 32).
The majority of technical terms in legal English are nouns, and the high percentage of nouns significantly contributes to the complexity and obscurity of legal texts. Additionally, other factors contribute to making legal English obscure, such as the presence of archaic words and phrases and of words of foreign origin (Xxxxxxx 2012, 32), as highlighted in the previous subsections of this chapter.
2.4.2 Syntactic features of legal English
2.4.2.1 Binomials and multinomials
Another recurrent feature in legal English is the tendency towards reduplication, where “two, and sometimes three near synonyms are combined” (Xxxxxxx and Xxxxxx 2002, 9). Binomial or multinomial expressions, often associated with legal texts (Xxxxxxxxxx 1975, 1984; Xxxxxxxx 1990; Xxxxxx 1993), are defined by Xxxxxx as “a sequence of two or more words or phrases belonging to the same grammatical category having some semantic relationship or joined by some syntactic device such as ‘and’ or ‘or’” (1993, 197). As he further states, some examples include: signed and delivered, in whole or in part, to affirm or to set aside, under or in accordance with. In a similar vein, Xxxxxxx defines binomials and multinomials as “[...] the sequence of two words pertaining to the same form-class, placed on an identical level of syntactic hierarchy, and ordinarily connected by some kind of lexical link” (1959, 113). In legal English, therefore, words are “often doubled or tripled in order to become more all- inclusive” (Xxxxx and Sours 2012, 363). For this reason, in legal English the following doublets and triplets are often found with the aim of enhancing inclusiveness: act and deed; bind and obligate; execute and perform; force and effect; legal and valid; null and void; cancel, annul, and set aside; form, manner, and method; promise, agree, and covenant.
2.4.2.2 Long and complex sentences
As previously mentioned in Subsection 2.2.2, long and complex sentences are typical of specialized languages, particularly legal language. In legal English, long sentences are often found in statutes, jury instructions and other types of legal texts (Xxxxxxxxxx 1975; Xxxxxxxx 1984). The intention is to “place all information on a particular topic into one self-contained
unit”, thus producing long sentences that are also very complex due to their particular structure made of “many conjoined and embedded clauses” (Xxxxxxx 1999, 56). As a matter of fact, in legal texts a great amount of information is often included into a single, extended sentence, leading to a grammatically complex and long body of words, which “would be far more comprehensible if it were broken down into parts” (Tiersma 1999, 57).
Criticism from the Plain English movement has been directed at the excessive length of sentences in statutes. However, this remains a particularly controversial issue. On the one hand, the interest is that of “tackling bureaucratese or officialese by producing documents that can be more readily understood by the population at large” (Xxxxxxxx 2004, 121). Nevertheless, on the other hand, it is necessary to distinguish between different types of legal texts. As Xxxxxxxx further observes, “while long and complex sentences in, say, a government leaflet on entitlement to unemployment benefit may find little reason for justification, legal drafting obeys a rather different type of logic” and “follows well- established drafting rules”, thus creating texts whose “underlying structure is in fact relatively straightforward to follow, even for the layperson, and it is difficult to see how anything would be usefully gained by breaking down the text into a series of shorter sentences” (2004, 122). As can be deduced, it is acknowledged that legal drafting can often result in unnecessarily long and complex sentences, but it is also important to recognize the contexts and the text types in which such sentences might be essential.
2.4.2.3. Passive constructions
As discussed in Subsection 2.2.1, while some specialized languages strive to be as precise as possible, legal language often intentionally embraces imprecision. In legal English, this intentional lack of precision is achieved through the use of passive constructions, which “often obscure the identity of the actor”, and “whether done intentionally or not, it can only reduce precision” (Tiersma 1999, 75). In passive sentences, the grammatical subject corresponds to the object of the action, instead of being the actor, as it occurs in active sentences, thus producing obfuscation rather than precision. As Xxxxxxx observes, the use of passive constructions can occur for legitimate reasons, as in the case of “Legislators and judges [who] want their commands to appear maximally objective, to give them the greatest possible rhetorical force” and, in the case of court orders, to “appear as authoritative as possible” (1999, 76)33.
33 As Xxxxxxx further observes, judges usually begin orders with ‘it is ordered’, instead of ‘I order’ to make the statement as authoritative as possible (1999, 76).
Passive constructions have also been criticized by the Plain Language exponents (Asprey 2003, 102-103). However, Xxxxxxxx (2004, 122) observes that it is essential to consider the specific contexts in which legal texts are drafted. In certain situations, the use of passive constructions may become necessary to avoid specifying the actor.
2.4.2.4 Impersonal constructions
English legal texts tend to include several impersonal constructions. One of the main reasons for this is that specific legal texts, such as statutes and contracts “are meant to be of general applicability and address several audiences at once”, and the use of such a kind of construction provides them with “an aura of objectivity” (Tiersma 1999, 68).
An alternative approach, commonly found in scientific and formal texts, is the use of the ‘editorial we’ – as in the case of the sentence ‘we find’. While this construction may seem more impressive and objective, resembling the plural of majesty, it can also come across as pompous (Tiersma 1999, 68). Judges, therefore, often prefer to use the third person, as in ‘this court finds’. In this way, the sentence “appears as an objective and powerful finding, made not by one frail human being, but endorsed by a venerable and powerful institution” (Xxxxxxx 1999, 68), reinforcing the idea that judges represent the law and justice rather than being mere mortals.
2.4.2.5 Nominalizations
As discussed in Subsection 2.2.2, nominalizations, which involves using a noun derived from another word class, are another recurrent feature in specialized language, particularly in legal English. Like passive constructions (see Paragraph 2.4.3.3), nominalizations can also “have the effect of de-emphasizing or obscuring the identity of the actor” (Xxxxxxx 1999, 77). However, Xxxxxxx notes a legitimate reason for their use in legal texts, namely that “by allowing the actor to be omitted, they enable legal drafters to cover the possibility of anyone doing a specified act” (Tiersma 1999, 77), thus making the law as broad as possible.
According to certain exponents of the Plain English movement, in legal texts there is an excessive use of nominalizations, rendering them extremely abstract and impersonal (Xxxxxxxx 2004, 123). However, it has also been suggested that
An advantage of this reification of processes and actions is that it makes them much easier to organise into an argument. It also means that they can be qualified and modified more
easily – adjectives are more productive and plentiful than adverbs, verb particles such as ‘intended’ and ‘referred to’ can be used, and nouns can modify other nouns (e.g. ‘service payments’) much more freely in English than one lexical verb can modify another lexical verb (Xxxxxxx 1994: 6f, cited in Xxxxxxx 1995: 120).
2.4.2.6 Complex prepositions
Complex prepositions represent a recurrent feature of legal English (Xxxxxxxxxx 1963; Xxxxxx 1993; Xxxxxxx 1999, 2015), often consisting of “two or more words (e.g. because of, in addition to and in the case of)” (Xxxxxxx 2020, 216). Quirk et al. defines them as “a sequence that is indivisible both in terms of syntax and in terms of meaning”, and further state that “Legal English is notable for complex prepositions, the following being among those found mainly in legalistic or bureaucratic usage: in case of, in default of, in lieu of, in pursuance of, in respect of, on pain of.” (1985, 671-672). Complex prepositions are also defined by Xxxxxx (1993, 197) as a ‘striking syntactic feature’ of legal texts. In addition, Bhatia states that
The use of complex prepositions rather than the simple ones, for example, ‘by virtue of’ instead of ‘by’, ‘for the purpose of’ in place of ‘for’, and ‘in accordance with’ or ‘in pursuance of’ instead of a simple preposition ‘under’ is rather preferred in legislative writing simply because the specialist community claims, with some justification, of course (see Xxxxxx and Bhatia, 1983), that the simple ones tend to promote ambiguity and lack of clarity. (Bhatia 1993, 197)
Prepositional phrases such as ‘in accordance with’ or ‘according to’ are also used in legal texts as a means to achieve textual mapping34 (Gotti 2014, 201, based xx Xxxxxx 1987b). This can be observed, for instance in Article 25(a) of the UNCITRAL Model Law on International Commercial Arbitration (see Chapter 3), which states that
Article 25. Default of a party
Unless otherwise agreed by the parties, if, without showing sufficient cause,
(a) the claimant fails to communicate his statement of claim in accordance with article 23(1), the arbitral tribunal shall terminate the proceedings.
34 Textual mapping is used in legal texts as a “text-cohering device” and its primary function is “to signal that some aspect of the provision under discussion has been postponed and to refer to the location where it could be found” (Xxxxxx 1987b, 3). Furthermore, such a device is used to reduce legal content in a specific part of the text and, as a consequence, to reduce prolixity.
[my emphasis]
Nevertheless, certain exponents of the Plain English movement, including Xxxxxx (2023), point out that complex prepositional phrases should be avoided in legal English as they contribute to making sentences less plain.
2.5 Legal genres
As discussed in the previous sections, this study acknowledges that specialized discourse (Xxxxxxxxxx and Xxxxxx 1987, 9; Xxxxxxxx 1997, 16; Gotti 2011a, 10) is not a uniform phenomenon. Legal language, specifically, cannot be regarded as monolithic (Bhatia 1987a, 227, also 1993, 187; Xxxxx 1994, 13; Tiersma 1999, 141). Certain features, whether at the lexical or syntactic levels, cannot be considered recurrent across all types of legal texts; instead, they are specific to particular genres. Text is defined as “a unit of language use that is both grammatically cohesive and semantically coherent, is produced to communicate and has meaning in the context in which it is used” (Darics and Xxxxxx 2018, 10), whereas a text type, or genre, can be defined as “a conventional way of using language for a particular communicative purpose, with typical linguistic features that help to meet that purpose: where genres are concerned, form follows function” (Darics and Xxxxxx 2018, 10). Genres are also defined by Xxxxxx (1993, 49) as
[a] recognizable communicative event characterized by a set of communicative purpose(s) identified and mutually understood by the members of the professional or academic community in which it regularly occurs. Most often it is highly structured and conventionalized with constraints on allowable contributions in terms of their intent, positioning, form and functional value. These constraints, however, are often exploited by the expert members of the discourse community to achieve private intentions within the framework of socially recognized purpose(s)
Genre analysis has therefore been described as “the study of situated linguistic behaviour in institutionalized, academic or professional settings”, and for this reason genres “cut across disciplines in an interesting manner” (Bhatia 2014, 34-35). As Xxxxxx further states, discourse variation in such settings has been analyzed in terms of registers and more recently as genres, although “both of them take into account some aspects of disciplinary variation” (2014, 35). The concepts of register, discipline and genre35 are therefore fundamental in the study of discourse and linguistic variation, and the interrelationship between them can be represented in Figure 2.5.
35 According to Xxxxxx (2014, 35), the term ‘discipline’ refers to the “content”, whereas ‘register’ refers to “the language associated with it”.
Figure 2.5: Registers, genres and disciplines in academic discourse (Bhatia 2014, 36).
Xxxxxx, in his work, adopts a genre-based perspective by posing a fundamental question: “why does a particular use of language take the shape it does?” (2014, 26). Although his focus remains on a more specific genre-based approach, he considers both registers – identified by Xxxxxxxx et al. (1964) on the basis of three contextual factors, namely field of discourse, mode of discourse and tenor of discourse (see Section 2.1) – and disciplines – which “invariably display predominant characteristics of the subject matter that they represent” (Xxxxxx 2014, 35). Xxxxx and Xxxxxx (2019) assert indeed that texts can be examined from register, genre and style perspectives. As a matter of fact, they further observe that
In the genre perspective, the focus is on the linguistic characteristics that are used to structure complete texts, while in both the register perspective and the style perspective, the focus is on the pervasive linguistic characteristics of representative text excerpts from the variety. (Biber and Xxxxxx 2019, 15)
While recognizing Xxxxx and Xxxxxx’x notions of register and style perspectives, this study employs the genre perspective, placing emphasis on the linguistic features that structure the entire text under analysis (Xxxxx and Xxxxxx 2019, 16).
In this study, the genre-based view is therefore adopted to contextualize legal texts that are collected in the Main Corpus. The methodological assumption (see Chapter 4) posits that texts and genres need to be investigated within the context of the practices, both institutional and professional, in which they are developed (Bhatia, Garzone and Xxxxxx 0000, 1). This is because “[g]enres are the products of disciplinary cultures”36 (Bhatia 2006, 6).
Furthermore, this study considers legal language as a heterogeneous phenomenon and emphasizes the importance of distinguishing among different types of legal genres. According to Xxxxxx, “[i]t is through a variety of legal genres that an attempt is made to create and maintain a model world37 of rights and obligations, permissions and prohibitions” (Bhatia 2006, 1). Such a model world is regulated through legislation, which represents the primary legal genre within the complete ‘system of legal genres’ (see Figure 2.6) elaborated by Xxxxxx, building on Bazerman38 (1994).
Xxxxxx designates legislation as the primary legal genre due to its composition “with mathematical precision, the object (though not always attained) being, in effect, to provide a complete answer to virtually every question that can arise” (Xxx Xxxxxxx Xxxxx, quoted in Xxxxxx, 0000, also in Bhatia 2006, 1). Furthermore, legislation exhibits several lexico- grammatical and discoursal features not usually present in other types of legal genres.
Legislation is intricately connected with the secondary type of legal genres, including judgements and cases. This connection arises from the relationship between the model world and the so-called ‘real world’, which is made of legal judgments that “can be viewed as attempts to enforce legislative intentions to bring the real world closer to the model world” (Xxxxxx 2006, 4). According to Xxxxxx (1993, 309)
Legal cases and legislation are complementary to each other. If cases, on the one hand, attempt to interpret legal provisions in terms of the facts of the world, legislative provisions, on the other hand, are attempts to account for the unlimited facts of the world in terms of legal relations.
The secondary legal genres encompass both judgements and cases. Typically, these genres begin with the establishment of facts and culminate in a judgment indicating the legal action
36 Such disciplinary cultures include, for instance, “legislation, cases, judgements, discussion notes, briefs, etc., which are often largely associated with legal culture alone” (Bhatia 2014, 26).
37 In Bhatia’s work, the so-called ‘model-world’ is “designed to be consistent with the vision that individual states or nations have of the society they wish to create; however, in practice, it is often constrained by the socio-political realities of individual national cultures” (2006, 1).
38 Xxxxxxxx defines the ‘system of genres’ as “the interrelated genres that interact with each other in specific settings (1994, 97).
determined by the court. Additionally, within this category are oral courtroom negotiation of justice, or courtroom genres. These genres unfold in formalized professional environments where participants engage in asking questions to witnesses, necessitating the negotiation and maintenance of social relations (Bhatia 2006, 3).
The remaining two categories of legal genres include the target genres and the enabling academic genres. Target genres include various professional documents such as property conveyance documents, contracts, agreements. These genres are “based on the inter- discursive formations of legislative and judicial expressions, and therefore share the same concerns of clarity, precision, unambiguity, and all-inclusiveness, leading to certainty of legal effect” (Xxxxxx 2006, 6). Enabling academic genres, instead, include textbooks, moots, examination essays, pleadings, legal problems, critical essays, and so on. These genres are used to train future legal professionals and experts.
Figure 2.6: Genre systems in law (Bhatia 2006, 7).
Given the importance attributed to genres, particularly legal genres, the following subsection focuses on the genre of arbitral awards, the object of analysis of this study.
2.5.1 Arbitral awards
This study adopts the genre-based approach employed by Xxxxxx and Xxxx (2012) in their examination of arbitral awards. They consider “genre as a “typical staged, goal-oriented” (Xxxxxx 1985) “social action” (Xxxxxx 1984) serving a specific communicative purpose” (Xxxxxx 1990; Bhatia 1993)”. Xxxxxx and Lung (2012, 23) assert that there has been relatively scant research on arbitration discourse. They contend that the work in which they contribute (Xxxxxx, Garzone, and Xxxxxx, 2012) aims to address this gap by concentrating on the specific genre of arbitral awards.
Arbitration and the institutional context of arbitral awards will be analyzed more in detail in Chapter 3; however, it is already worth noting that international arbitration stands out as the most commonly used Alternative Dispute Resolution (ADR) method used by parties to settle their disputes without resorting to courts. Such a practice has “developed in a manner to allow parties from different linguistic, legal and cultural backgrounds to resolve their disputes with minimum interference from the courts” (Xxxxxx, Xxxxxxx and Gotti 2012, 3). Previous studies have explored the different sociocultural backgrounds and their effects on the arbitration discourse (e.g., Xxxxxxx, Xxxxxxx and Trosborg 2003; Bhatia, Xxxxxxx and Xxxxxxx 2008; Xxxxxx, Xxxxxxx and Gotti 2012) and the role of cultural differences in the discourse of professional reasoning in the arbitration process (Xxxxxx 2011). Specifically, with regard to the latter, in international arbitration the diverse origins of participants and arbitrators contribute to varied knowledge and assumptions in the arbitration process. This diversity gives rise to cross-cultural differences in the professional reasoning contained in arbitral awards (Hafner 2011, 118). However, it is particularly new and relevant, both for scholars and practitioners, that in the last few years increased accessibility to data, facilitated by platforms, such as the Jus Mundi search engine, has enabled both practitioners and scholars to retrieve arbitral awards from institutions across the globe (refer to Chapter 4 for further details).
The resolution of arbitration disputes involves indeed the issuance of an arbitral award by a neutral third party, serving as the final decision of the arbitral tribunal. Typically, the tribunal consists of either a single, impartial arbitrator or three impartial arbitrators. Notably, the arbitral award is legally binding and, with only limited grounds related to procedural issues, it is enforceable and generally immune to challenges in a court of law (Xxxxxx, Xxxxxxx, and Xxxxx 2012, 4).
According to Frade, it is possible to “talk about ‘genre’ associated with the arbitration process”, but it is also possible to understand such a process “as a series of moves39 instantiated in subgenres and smaller genres embedded in a stabilized macro-speech act, resulting in what Xxxxxxxx (1994) calls a system of genres” (2012, 45). In this regard, Frade identifies some major international arbitration rules and legislation as hierarchical systems of genre, as illustrated in Figure 2.7 below.
Figure 2.7: International arbitration system of genres (Frade 2012, 47).
Based on Figure 2.7, it can be stated that “[i]nternational arbitration is a highly specialized discourse domain with specific moves and specific rules governing the success of those moves” (Xxxxxxxx 1994, 97, quoted in Frade 2012, 48). As Frade (2012 49) further observes
Broadly speaking, an arbitration process will not be initiated unless there is an agreement between the parties; the agreement, in turn, will not be valid unless there is appointment of an arbitration tribunal to conduct arbitral proceedings; arbitral proceedings will not be conducted unless some governing rules are stated and an xxxx is made and, finally, the arbitration will not be completed unless and until the award is enforced.
In such a complex procedure, the arbitral award represents the closing of the arbitration proceedings. It is a “conventionalized genre” (Frade 2012, 57) whose tendency is that of relying “more on content rather than formal features of writing” (Tessuto 2008, 182, quoted in Frade 2012, 57). Furthermore, the award generally articulates “the ‘reasons’ and/or the
39 In this study, the term ‘move’ is used as a synonym for ‘act’ or ‘development’ – instead of as Xxxxxx’ (1990) rhetorical concept. Furthermore, ‘move’ can be defined as “the elements of which a text is made up” (Darics and Xxxxxx 2018, 17). In moves analysis, the first stage is to identify the distinctive units of a text and the communicative purpose of each of these units. The second stage entails a thorough analysis of the linguistic choices – such as the lexical and grammatical choices – that allow to realize the communicative purpose of the move.
‘basis’ for the decision”, which entails that it has to “make clear what the legal authority of the document is, who the parties are, and what they are required to do, what the legal basis for that requirement is and why that legal basis applies to the matter” (Frade 2012, 57). As discussed by Xxxxxx and Xxxx (2012), typical rhetorical and cognitive patterns can be identified in arbitral awards. Specifically, he identifies the presence of discursive hierarchical patterning (DHP) in various arbitral awards collected from different countries, outlining four distinct patterns (see Figure 2.8 below):
Figure 2.8: Discursive hierarchical patterning in arbitration awards (Bhatia and Lung 2012, 25-26).
As depicted in Figure 2.8, the pre-opening Move ‘Heading’ is referred to as ‘ArbDHP-Pre- 1’ and it introduces the award by providing a concise overview, featuring details about the arbitration tribunal’s identification, the legislation under which the proceedings are conducted, the date, the names of the parties involved and their status (claimant or respondent), the seat of arbitration.
Subsequently, the first Move ‘Recitals’ (ArbDHP-1) provides background information on the award. This encompasses the context of the dispute and involves four steps:
1. ‘Introducing the parties’ (ArbDHP-1-S1), thus providing information on the historical account of the dispute and assigning functional roles to the parties;
2. ‘Competence of the tribunal’ (ArbDHP-1-S2), which “establishes the competence or jurisdiction of the tribunal to arbitrate the dispute” (Xxxxxx and Lung 2012, 28);
3. ‘Pre-hearing proceedings and applicable law’ (ArbDHP-1-S3), whose communicative purpose is that of “testifying firstly that a number of matters have been agreed on and settled in the pre-hearings; secondly, that the parties are ready to proceed with the hearing; thirdly, to explicitly re-state that the parties’ agreement on the applicable law in the arbitration concerned” (Xxxxxx and Lung 2012, 30);
4. ‘General statements of a dispute’ (ArbDHP-1-S4), which explains the main issues by outlining the essence of the dispute.
The second Move ‘Details of the dispute’ (ArbDHP-2) involves three other steps:
1. ‘Summary of agreed facts’ (ArbDHP-2-S1), which focuses on the so-called material facts by offering “a recap of the documentary evidence supplied by the parties” often including dates and agreement numbers “in a clear, concise and chronological manner” (Xxxxxx and Lung 2012, 32);
2. ‘Submission and claims and/or counterclaims by the parties’ (ArbDPH-2-S2), in which parties present claims – “a statement of injury along with a request for compensation” (Xxxxxx and Lung 2012, 33) – or counterclaims. As a matter of fact, this step involves two sub-moves, namely the ‘Claimant’s submissions and claims’ (ArbDHP-2-S2a) and the ‘Respondent’s defence / counterclaims’ (ArbDHP-2-S2b). This is because the “claim is presented by the party demanding arbitration, and the respondent files a Response to the Demand which may or may not include a claim for compensable injuries” (Xxxxxx and Lung 2012, 33);
3. ‘Relief sought by the parties’ (Optional) (ArbDHP-2-S3), which is optional and therefore, if applicable, it follows the preceding steps by providing a statement of the arbitrators including the relief sought by both the Claimant and the Respondent.
After having provided the details of the dispute, the third Move ‘Reviews of contentions and claims’ (ArbDHP-3) provides an analysis of the previously presented information.This entails a comprehensive analysis of “both the facts and the law by assessing the evidence, and at the same time discussing the range of factual and legal issues involved” (Xxxxxx and Lung 2012, 36). It involves the following steps:
1. ‘Analyses’ (ArbDHP-3-S1), which in its turn involves the following sub-steps:
a. ‘Factual analysis’ (ArbDHP-3S1a), which provides “a consideration of the facts of the award and any evidence offered” (Xxxxxx and Xxxx 2012, 37);
b. ‘Legal analysis’ (ArbDHP-3S1b), which identifies the legal issues presented and contested, and the governing law applying to the facts of the case at hand is determined;
c. ‘General principles of good faith’ (Optional) (ArbDHP-3S1c), which is optional and involves the important principle of Good Faith that is often used in contract law. Such a principle involves “being honest in one’s purpose and sincere in one’s speech as well as the expectation of such qualities in others” (Pound 1922, 188, quoted in Xxxxxx and Lung 2012, 39).
2. ‘Conclusions of factual analysis & conclusions of legal analysis’ (ArbDHP-3-S2), which summarizes the conclusions of both the factual and the legal analyses that have been previously described.
Finally, the fourth Move ‘Closure (The award)’ (ArbDHP-4) involves three steps:
1. ‘Final conclusion of the dispute’ (ArbDHP-4-S1), in which the tribunal makes the final decision on the dispute at hand;
2. ‘Dispute resolution and calculation exercise about the award’ (ArbDHP-4-S2), including information on whether the claimant’s claims are granted or denied with justifications, and information on the calculation exercise by establishing the amount awarded on the claim;
3. ‘Operative directions’ (ArbDHP-4-S3), which provides directions for disposing the costs of arbitration.
In conclusion, as briefly touched upon earlier and to be further elucidated in Chapter 4, arbitral awards have traditionally adhered to the principle of confidentiality due to the frequent involvement of commercially sensitive information, such as trade secrets, in international commercial arbitration proceedings (Hafner 2011, 119). However, this principle is gradually becoming less absolute, leading to an increased accessibility of arbitral awards to the general public. This development is important for a twofold reason:
1. It facilitates practitioners and scholars in accessing pertinent data;
2. It enables in-depth investigation, analysis, and comparison of the professional reasonings of arbitrators involved in disputes settled across different regions of the world and applying different laws.
CHAPTER 3
INTERNATIONAL COMMERCIAL ARBITRATION: THE CONTEXT
As briefly outlined in Chapter 1, this study is grounded in the methodological assumption that texts and genres can only be effectively examined within the context of the institutional and professional practices from which they originate. As articulated by Xxxxxx, it is important to maintain “a balance between the study of linguistic form, on the one hand, and the study of context, in a broad sense of socio-cultural factors, to focus on why members of specific disciplinary cultures use the language the way they do and what makes this form possible” (Xxxxxx 2002a, 23). Xxxxxxx plays a pivotal role in unraveling how linguistic elements contribute to the overall meaning of a discourse.
Consequently, this chapter defines international commercial arbitration and elucidates its key characteristics to establish the institutional backdrop for the linguistic analysis conducted in this research. Section 3.1 starts introducing international commercial arbitration defining characteristics. In Section 3.2, xxx xxxxx of commercial arbitration are illustrated by providing a brief overview of its historical background. Subsequently, Section
3.3 illustrates the evolution of the international commercial arbitration legal framework in the early 20th century. In Section 3.4, the goal is to provide a general overview of the current international arbitration frameworks in the common law and civil law legal systems under analysis, namely the United States (3.4.1), the United Kingdom (3.4.2), Singapore (3.4.3), Hong Kong (3.4.4), France (3.4.5), Italy (3.4.6), and Switzerland (3.4.7).
3.1 Main features of commercial arbitration
Arbitration has been conceptualized in various ways by scholars. As highlighted in Section 1.1, according to Born (2021, 1), arbitration serves as a method for conclusively settling international disputes based on the parties’ mutual agreement, with decisions made by impartial, non-governmental authorities. Xxxxx defines arbitration as “a private system of adjudication” in which “[p]arties who arbitrate have decided to resolve their disputes outside any judicial system” producing “a final and binding decision, producing an award that is enforceable in national court” (2017, 1). DeVries provides an alternative definition,
describing arbitration as “a mode of resolving disputes by one or more persons who derive their power from the agreement of the parties and whose decision is binding upon them” (1982, 42-43).
As can be noticed, distinctive common elements stand out in the definitions provided above. In all instances, arbitration is identified as a method of dispute resolution. Furthermore, there is a common theme of party agreement to resolve disputes through arbitration. Additionally, the decision-making authority is consistently vested in one or more individuals agreed upon by the parties. Finally, the decisions reached through arbitration are binding.
Scholars such as Born (2001, 1) and Xxxxx (2017, 2-3) outline distinctive characteristics that define commercial arbitration:
1. Firstly, they characterize commercial arbitration as consensual, emphasizing that, in most instances, parties must mutually agree to resolve their disputes through arbitration. Unlike litigation, where parties are often compelled to participate in a court process, arbitration occurs only when all involved parties agree to submit their dispute to arbitration. Consensual arbitration typically involves a contractual agreement between the parties, which is “the relinquishment of an important right – to have the dispute resolved judicially – and creates other rights”, namely “the rights to establish the process for resolving the dispute” (Xxxxx 2017, 18). This agreement outlines the terms and conditions governing the resolution of the dispute through arbitration instead of the traditional court system. The consensual nature of arbitration provides parties with the autonomy to choose their dispute resolution mechanism, and it reflects a commitment to resolving conflicts outside of the formal court system. It is this voluntary agreement that makes arbitration consensual, distinguishing it from other forms of dispute resolution that may be imposed or mandated by law. As noted by Born (2001, 5), international arbitration agreements should address various significant issues, including the situs of the arbitration, the applicable institutional or other procedural rules, the method of selecting the arbitrators, the number of arbitrators, the applicable substantive law40, and the language of the arbitration. Moreover, it is crucial for such an agreement to be valid.
40 In this regard, it is important to highlight that various layers of laws may come into play in the realm of international commercial arbitration. As clarified by Xxxxx (2017, 59, 69), parties typically opt for a specific law to govern the contract, known as substantive law. Conversely, the law governing the arbitration procedure often differs and is typically a national law, specifically the arbitration law at the location of the arbitration, commonly referred to as lex arbitri. Additionally, even though the lex arbitri typically addresses the formal validity of the arbitration agreement, the laws governing the substantive validity of such an agreement could vary and be drawn from a range of legal sources.
To establish the actual consent of the parties, “many national laws, as well as the New York Convention, require that an arbitration be in writing” and “be signed by both parties” (Moses 2017, 19-20).
2. Secondly, it is argued that arbitrations are resolved by non-governmental decision makers. This is attributed to the fact that arbitrators are typically private individuals chosen by the parties involved in the dispute. They may be legal professionals or individuals with specific knowledge relevant to the dispute (Helm, Xxxxxxxx and Xxxxxxxxxx 2016, 667). The arbitral tribunal, typically composed of either one or three arbitrators appointed to resolve a dispute through resolution, plays a crucial role in ensuring a fair and impartial resolution of disputes (Fortese and Lemmi 2015, 112). In a three-member tribunal, each party usually appoints one arbitrator. The appointed arbitrators then collaborate to select the presiding arbitrator, who often serves as the chair of the tribunal (Xxxxx 2014, 136). If the parties opt for a sole arbitrator, they typically agree on the appointment together or follow a designated process, such as selecting an arbitrator from a pre-established list. In cases where the arbitration is administered by an arbitral institution, the institution may play a role in the appointment process, either by directly appointing arbitrators or assisting the parties in their selection (Xxxxx 2017, 126-133). Expanding xx Xxxxx’ perspective, she asserts that arbitrators exhibit a high degree of thoughtfulness and consideration towards the involved parties. This is attributed to the fact that “arbitrators are chosen by the parties and, of course, they would like to be chosen again” (Xxxxx 2017, 2). Arbitrators are also bound by the obligation to be impartial and independent in their role (Xx-Xxxxxxxx, Xxxxxx and Al-Sharariri 2018, 66). According to Xxxxx, impartiality “means that the arbitrator is not biased because of any preconceived notions about the issues and has no reason to favor one party over another”, whereas independence “means that the arbitrator has no financial interest in the case or its outcome” (2017, 135-36). However, independence may also entail that the arbitrator is not reliant on any party for personal benefits, such as employment or client referrals, and that arbitrators do not maintain a close business or professional relationship with any of the parties. Furthermore, arbitrators have the obligation to render an enforceable award (Xxxxx 2017, 145) and they may be required under local law to act with due care, to treat parties equally, and to give each party a full opportunity to present its case41.
41 See, e.g., the UNCITRAL Model Law, arts. 12, 14, 18.
3. Thirdly, arbitration results in a binding award, which is capable of enforcement through national courts. The term ‘binding’ underscores the legal obligation of the parties to adhere to the decision made by the arbitrators. Parties enter into arbitration agreements with the understanding that the resulting award will be binding. The enforceability of the award is supported by national laws and international conventions, such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (see Section 3.3). The binding nature of the award is rooted in the consensual agreement of the parties to submit their dispute to arbitration and abide by the decision of the arbitrators. This is a key distinction from non-binding forms of alternative dispute resolution, such as mediation. However, while binding, arbitration awards are not immune to challenges. As Xxxxx (2017, 205) states, in the majority of jurisdictions, grounds for challenging arbitration awards typically fall into two broad categories: jurisdictional and procedural. Jurisdictional challenges are often raised at the beginning of arbitration proceedings rather than after the award is issued. Laws in many places may deem a party to have waived the right to challenge jurisdiction if not done at the outset. It is more efficient to address jurisdictional concerns early in the arbitration process to avoid wasting time, effort, and resources. Boycotting proceedings is not recommended (Xxxxxxxx et al. 2015, 354-355), as even if a party challenges the award later, enforcement may still occur, and costs may be awarded against them. Therefore, it is generally advisable for a party to raise jurisdictional challenges at the start of arbitration, and if unsuccessful, participate in the process. Awards are commonly challenged on procedural grounds, with many arbitration laws requiring adherence to certain standards of due process42. Additionally, national courts may independently assess two key grounds, namely whether the subject matter is arbitrable (Bantekas 2008, 193) and whether the award contradicts the public policy of the state. While the definition of public policy varies across jurisdictions (Bockstiegel 2008, 125), in most cases, an award may be annulled if it fails to align with fundamental principles of justice, honesty, and fairness. Instances of corruption, fraud, or a lack of integrity in the process may be deemed violations of public policy, warranting the annulment of the award (Moses 2017, 206).
42 For instance, Article 34 of the UNCITRAL Model Law specifies that a party can raise a challenge based on particular grounds, all of which pertain to various aspects of due process (Xxxxx 2017, 206).
Various types of awards exist (Moses 2017, 190-191). The term ‘final award’ typically refers to the tribunal’s decision that resolves all remaining disputes between the parties. A second type is the ‘interim award’, issued during arbitration proceedings before a final decision on the merits with the purpose of dealing with urgent matters that cannot wait until the conclusion of the arbitration. It’s worth noting that although the term ‘interim award’ is sometimes used interchangeably with ‘partial award’, they are distinct. A partial award is issued when the arbitral tribunal resolves specific issues within the overall dispute, leaving other issues to be resolved later in the proceedings. This type of award is often used when certain aspects of the dispute are ready for resolution, even if the entire dispute has not been fully heard or decided. Additionally, parties can opt for a voluntary settlement through consent at any point, resulting in a ‘consent award’ that eliminates the need for an arbitral decision. Lastly, a ‘default award’ may be issued when one party fails to participate in the proceedings. Ultimately, a crucial consideration in handling arbitral awards revolves around the significance that is placed on maintaining the confidentiality of such awards. Within the arbitral sphere, a dilemma exists between the inclination to keep awards confidential43 (e.g., Xxxxxxx 2010, 169-171) and the inclination to make them widely accessible for use as guidelines, if not precedents (Xxxxx 2017, 200) (see Chapter 4). Arbitration proceedings often provide a higher degree of confidentiality compared to court litigation (Zlatanska 2015, 26), thus allowing the parties to keep the arbitration and its details private, safeguarding sensitive information from public disclosure. However, as many scholars suggest (e.g., Xxxxxx 2010a, 575; Xxxxx 2017, 200; Xxxxx and Xxxxxxxxxx 2022, 21-27), access to information about how similar cases have been decided can enhance the effectiveness of settlement discussions for parties. Furthermore, in recent decades, there has been an argument that the publication of arbitral awards could serve as ‘educational samples’, contributing to the training of young arbitrators and promoting consistency in the reasoning of arbitral awards at the international level. This topic holds particular interest and relevance for the purposes of the study, and it will be explored in greater detail in Chapter 4.
4. Finally, according to Born (2001, 1) flexibility is a key characteristic of arbitration. As Xxxxxxx and Xxxxxx state, “One of the fundamental principles that forms the basis
43 As noted by Xxxxxxx (2010, 1), confidentiality in arbitral proceedings does not pertain to third parties’ ability to observe the proceedings without the consent of the disputing parties and the arbitrator. Instead, it lies in the parties’ ability to disclose documents and information used or connected to the arbitration.
and runs through most aspects of modern international arbitration is party autonomy” (2005, 15). As a matter of fact, parties in arbitration have the freedom to shape the procedural aspects of the dispute resolution process. They can tailor the arbitration proceedings to suit the specific requirements of their case, subject to any mandatory legal provisions or the rules of the chosen arbitral institution. Furthermore, arbitration often allows for faster resolution of disputes compared to litigation. The flexibility to set timelines and deadlines helps expedite the arbitration process, making it an attractive option for parties seeking quicker outcomes (Lecaj and Curri 2021, 98). Additionally, arbitration procedures are generally less formal than court proceedings (Xxxxx and Xxxxx 2021, 99), which is a factor that often contributes to providing the parties with a more relaxed and collaborative environment for presenting their cases. Finally, in most cases parties can choose the venue or seat of arbitration, providing flexibility in selecting a neutral or convenient location. They can also determine the language(s) in which the proceedings will be conducted (Lecaj and Curri 2021, 99), facilitating communication and understanding. However, it is crucial to bear in mind that although parties have considerable freedom to tailor their arbitration procedure, there is a need to strike a balance. Excessive customization or provisions that undermine fundamental principles of fairness and due process may be open to scrutiny and challenge. This could lead to the setting aside of the award, invoking the grounds for challenge outlined in point 3 of this section.
3.2 A brief overview of the historical background of commercial arbitration
As illustrated in the previous section, arbitration therefore represents a private process providing an alternative to traditional litigation in national courts. Xxx xxxxx of commercial arbitration, somewhat shrouded in obscurity (Wolaver 1934, 132), are sometimes traced to early reports from the Middle East and from convincing examples of agreements to arbitrate future disputes in ancient Egypt. Furthermore, commercial arbitration was a common method for resolving disputes in ancient Greece (Xxxxxxx 1970, 156). This was primarily driven by the congestion and backlog issues experienced by ancient Greek courts, “which led to the use of arbitrators, retained from other city states (rather like foreign engineers or mercenaries), to resolve pending cases” (Born 2021, 23). Furthermore, as Xxxxxxx asserts, in ancient Greece “Arbitration was the natural and regular process of choice for those who could not afford litigation, were afraid of its outcome, preferred privacy, or were manipulating the alternatives” (2001, 45-46).
Arbitration played a crucial role in resolving commercial disputes even during the Roman era “because of the deficiencies in the state court systems” (Kidane 2017, 24). Furthermore, in both ancient Greece and Rome, awards resulting from arbitration were characterized as “reasoned, binding and apparently subject to little subsequent judicial review” (Born 2021, 24).
In the post-Classical era, arbitration gained increasing favor. Historical records suggest that arbitration continued to hold a vital position in handling commercial matters during the Byzantine period, in Egypt and elsewhere. The increasing use of arbitration can be attributed, in part, to shortcomings observed in state court systems, which were described as “unreliable, cumbersome and costly” (Born 2021, 26).
During the Middle Ages, arbitration continued to be widely employed in many European regions (Xxxxx 1985, 85-65), such as England, Germany, Switzerland, Northern Italy and France. It emerged as an autonomous method of dispute resolution operated by merchants for merchants (Xxxxxx and Xxxxxx 1985, 84, quoted in Brekoulakis 2016, 7), particularly within the context of “merchant guilds, trade fairs, or other forms of commercial or professional organizations” (Born 2021, 27). Evidently, commercial arbitration was extensively employed in these European regions during the Middle Ages. Supporting this observation, early codifications of procedural law from the 14th, 15th, and 16th centuries explicitly incorporated arbitration as an alternative to local court proceedings.
As international trade surged during Europe’s early modern era, the arbitration of private commercial disputes emerged in tandem. Xxxxxxxxx opted to resolve conflicts in specialized tribunals in Mediterranean ports. Specifically, they turned to the application of lex mercatoria – a set of customary laws established by traders – for their domestic or international business affairs (Slomanson 2004, 238). Lex mercatoria, encompassing customary commercial law, rules of evidence and procedure, and general commercial principles, not only shaped trade regulations but also left an indelible mark on the legal culture of emerging states and nations throughout Europe, “ultimately providing the foundations of nowaday’s international commerce and arbitration” (Xxxxxx 2016, 9).
However, as noted by Xxxxxx (2017, 24), the development of arbitration did not progress seamlessly but rather encountered opposition during what has been termed as “Dark Ages” (Xxxxxxxxx 2004, 238). In the context of common law traditions, particularly in England (Kidane 2017, 24; Born 2021, 32-37), the 1698 Arbitration Act aimed to enhance trade and the effectiveness of arbitrators’ awards by allowing parties to establish arbitration agreements as a rule of court. Despite these legislative efforts, English common law initially considered arbitration agreements revocable, thus limiting their enforceability. It was only through the 1833 Civil Procedure Act that the principle asserting the irrevocability of an arbitration agreement that was made a rule of court was reaffirmed. Subsequently, the 1854 Common Law Procedure Act affirmed the permanence of arbitration agreements, although it introduced judicial review of arbitration awards. The 1889 English Arbitration Act, also adopted by the Commonwealth nations, retained the court’s authority to review certain questions of law. This Act endured for over half a century before being succeeded by England’s Arbitration Act of 1950 and 1996, which “progressively lessened the courts’ involvement while still maintaining some level of oversight” (Kidane 2017, 25).
As discussed by Xxxx (2021, 39-49) in his work, the evolution of commercial arbitration in the United States during the 18th and 19th centuries closely mirrored the trajectory observed in England during the same period. Initially, arbitration was widely used to settle disputes, especially in colonial and early republican periods. However, in the 19th century, there was a significant increase in judicial and legislative hostility towards arbitration agreements, influenced by a radical interpretation of historic English common law authority. Despite this hostility, “the use of commercial arbitration developed during the colonial and postrevolutionary periods” (Xxxxxx 1995, 483). By the late 19th and early 20th centuries,
U.S. judicial and legislative attitudes towards commercial arbitration began to shift. Courts began to question the earlier hostility, and commercial pressure for reform led to legislative changes. In 1920, New York introduced legislation supporting the validity and specific
enforcement of arbitration agreements, followed by the Federal Arbitration Act (FAA) in 1925. These changes “enacted a sea change from the American common law by instituting a default rule that contracts to arbitrate should be enforced by the courts” (Born 2021, 49). The development of arbitration faced resistance in civil law countries as well (Kidane 2017, 25). In France, the historical progression of arbitration paralleled that of England as well (Born 2021, 37-39). Initially, the Edict of 1560 and merchant practices led to widespread use of arbitration for commercial dispute resolutions. During the French Revolution, arbitration gained enhanced dignity, aligning with notions of social contract and democratic choice. It was perceived as a reasonable means for dispute resolution and even achieved constitutional status in 1793 and 1795. However, as Xxxxx (1985, 90) states, the revolutionary sentiment eventually turned against arbitration, viewing it as a threat to the rule of law and revolutionary authority. The Napoleonic Code of Civil Procedure in 1806 imposed strict restrictions on arbitration agreements, rendering future dispute agreements generally unenforceable (Kidane 2017, 25). It took approximately eight decades for this hostility to ease, first in international cases and later in domestic ones. France’s ratification of the Geneva Protocol of 1923 marked a turning point, making agreements to arbitrate future international commercial disputes fully enforceable in French courts (Born 2021, 39).
In line with the aforementioned nations, arbitration appears to have followed a similarly uncertain path in the Middle East, Asia, and Africa. According to Xxxx (2021, 52-56), despite historical traditions of longstanding reliance on settling disputes through arbitration, this method encountered general distrust in these regions during the 20th century. Political attitudes in these regions often limited the effectiveness of arbitration agreements and rejected the finality of arbitral awards. It was only in the 1980s and 1990s that the vast majority of the countries in these regions began to adopt the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (see Section 3.2), thereby enhancing the role of arbitration in the resolution of commercial disputes.
As elucidated in this section, the enduring presence of arbitration across global legal traditions remains a testament to its resilience, prevailing despite resistance during certain historical epochs. Particularly noteworthy is its pivotal role in the 20th century, a period marked by the widespread recognition of arbitration's significance. This acknowledgment led to the establishment of crucial frameworks, including international arbitration conventions, national arbitration legislation, and institutional arbitration rules. Additionally, the cooperative engagement of national courts in numerous well-developed jurisdictions played a supportive role, further solidifying arbitration's stature in the legal landscape (Born
2021, 57). This transformative evolution is comprehensively expounded upon in the subsequent section.
3.3 Evolution of the international commercial arbitration legal framework in the 19th and 20th centuries
According to Xxxxx and Xxxxxx, “The construction of the international arbitration framework is one of the great legal accomplishments of the twentieth century” (2013, 2). In alignment with this perspective, Xxxxxxxxxxx (2016, 7) claims that the late 19th and early 20th centuries marked a significant period of development for arbitration. During this period, arbitration gained increasing recognition as an efficient and effective dispute resolution method (Xxxxxxxxxxx 2016, 8), a sentiment reflected in the substantial legal advancements in the codification of arbitration laws globally (Xxxxxx and Xxxxxx 1985, 84). In the United States, arbitration laws were enacted at both the federal level, exemplified by the Federal Arbitration Act (FAA), and state level. Similarly, across Europe, several countries took strides in codifying arbitration laws during the 19th century. France, for instance, incorporated arbitration provisions into the Code of Civil Procedure of 1806, with subsequent legal developments continuing to shape the landscape of arbitration in the country (Xxxxxxx 1982, 749-750). Likewise, other European jurisdictions, including Germany, Austria, the Netherlands, and Italy, integrated arbitration laws into their national codes of civil procedure, as the initial perception of arbitration was that of “a distinct legal field” rather than “an integral part of other areas of law” (Brekoulakis 2016, 8).
The impetus for the codification of arbitration laws during the 19th century often stemmed from a desire to establish a legal framework that would facilitate the enforcement of arbitration agreements and awards, promote commercial dispute resolution, and provide parties with a viable alternative to traditional litigation. These early efforts in codifying arbitration laws laid the foundation for the contemporary arbitration framework. As will be described in this section, over the years international conventions and treaties further contributed to the global acceptance and enforcement of arbitration agreements and awards, making arbitration a widely recognized and utilized method for resolving disputes.
According to Born (2021, 57-58), the drive behind these diverse legal advancements was the international business community, the primary user of the arbitral process, finding receptive audiences in national legislatures and judiciaries eager to promote international dispute resolution mechanisms. The initiation of modern-era international commercial arbitration treaties can be traced back to the Montevideo Convention 1889, signed by several Latin American states, inaugurating the beginning of a tradition of multilateral conventions. Subsequent to the Montevideo Convention, the Hague Convention of 1899 on the Pacific
Settlement of Disputes and the Hague Convention of 1907 on the Pacific Settlement of International Disputes were introduced, attempting to facilitate the arbitration-based resolution of inter-state disputes.
However, it was only in the 1920s that the foundations of the contemporary legal framework for international commercial arbitration were firmly established. In 1919, the International Chamber of Commerce44 (ICC) was established. Thanks to the ICC (Shalakany 2000, 430), in 1923 major trading nations negotiated the Geneva Protocol on Arbitration Clauses in Commercial Matters. This Protocol laid the groundwork for the contemporary international arbitration process and was complemented by the Geneva Convention for the Execution of Foreign Arbitral Awards in 1927. Both instruments, despite imperfections (Xxx xxx Xxxx 1981, 7), established “the basic principles of the presumptive validity of international arbitration agreements and arbitral awards, and the enforceability of arbitration agreements by specific performance, as well as recognition of the parties’ autonomy to select the substantive law governing their relations and to determine the arbitration procedures” (Born 2021, 62). Moreover, both of these instruments “inspired and paralleled national legislation and business initiatives” (Born 2021, 62) aimed at enhancing the legal framework governing international commercial arbitration agreements.
The devastation of World War II imposed a pause on the evolution of arbitration legal frameworks for international commercial arbitration. Despite this setback, the dedication to establishing an international legal framework for international commercial arbitration endured. In 1958, this commitment materialized in the form of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereafter referred to as the ‘New York Convention’). Widely regarded as the most significant contemporary international agreement in the realm of commercial arbitration, the New York Convention governs the enforcement of both arbitration agreements and awards. The global significance of this convention is underscored by the extensive participation of numerous countries as
44 The ICC’s primary goal is to advance the development of a global economy marked by openness, firmly believing that international commercial interactions contribute to both increased worldwide prosperity and peace among nations. All activities of the ICC aim: “to promote international trade, services and investment, while eliminating obstacles and distortions to international commerce; to promote a market economy system based on the principle of free and fair competition among business enterprises; to xxxxxx the economic growth of developed and developing countries alike, particularly with a view to better integrate all countries into the world economy” (Preamble of the Constitution of the International Chamber of Commerce (ICC) available at xxxxx://xxxxxx.xxx/xxx- constitution/).
parties to it45 (Xxxxx 2017, 8). In essence, the New York Convention, as outlined by Born (2001, 21):
1. Mandates national courts to recognize and enforce foreign arbitral awards, with specified exceptions;
2. Requires national courts to acknowledge the validity of arbitration agreements, with specified exceptions;
3. Directs national courts to refer parties to arbitration when a valid agreement to arbitrate, subject to the Convention, has been entered into.
The New York Convention is often considered as the “‘single most important pillar on which the edifice of international arbitration rests’ and one which ‘perhaps could lay claim to be the most effective instance of international legislation in the entire history of commercial law’” (Xxxxxxx and Hunter 2004, 133). The New York Convention introduced several noteworthy improvements to the framework established by the Geneva Protocol and Geneva Convention for the enforcement of international arbitration agreements and arbitral awards. Born (2021, 97) succinctly summarized these improvements as follows:
Particularly important were the the shifting of the burden of proving the validity or invalidity of arbitral awards away from the party seeking enforcement to the party resisting enforcement, its recognition of substantial party autonomy with respect to choice of arbitral procedures, the procedural law governing the arbitration and law applicable to the arbitration agreement, and its abolition of the previous “double exequatur” requirement (which had required that the arbitral awards be confirmed in the arbitral seat before being recognized abroad).
45 Initially, the ratification of the New York Convention was limited, with South American states, in particular, displaying reluctance until the 1980s. This hesitancy was largely attributed to a general skepticism and aversion towards international commercial arbitration. However, in 1975, the United States and most South American nations engaged in negotiations leading to the creation of the Inter- American Convention on International Commercial Arbitration, commonly known as the ‘Panama Convention’. This was ratified by seventeen South or Central American countries and the United States, by “making arbitration much more acceptable in Latin American countries” (Moses 2017, 8). As Born (2021, 105) states, while sharing similarities with the New York Convention, the Panama Convention introduces notable innovations by stipulating that in cases where the parties have not explicitly agreed to any institutional or other arbitration rules, the rules of the “Inter-American Commercial Arbitration Commission” (“IACAC”) will apply. The Commission, in turn, has adopted rules closely resembling the UNCITRAL Arbitration Rules. The Convention also incorporates provisions pertaining to the constitution of the arbitral tribunal and the parties’ freedom to appoint arbitrators of their choosing, regardless of nationality. However, a notable deviation from the New York Convention is observed in the Panama Convention’s omission of provisions explicitly addressing judicial proceedings brought in national courts in violation of an arbitration agreement.
Nevertheless, it is also recognized that the New York Convention
does not provide for an overall regulation of international commercial arbitration as do, for example, the Washington Convention of 196546 and, to a lesser extent, the European Convention of 196147. Nor is the Convention a uniform law on arbitration like, for instance, the European Uniform Law of 196648. Rather, the New York Convention is in essence limited to two aspects of international commercial arbitration: the enforcement of those arbitration agreements which come within its purview (Art. II(3)) and the enforcement of foreign arbitral awards (Arts. I and III-VI). (Xxx xxx Xxxx 1981, 9-10)
The primary emphasis of the New York Convention is therefore on the recognition and enforcement of arbitration agreements and arbitral awards, with a notable omission of specific provisions addressing the procedures of international arbitrations.
Nevertheless, the New York Convention stands as the first component among the three major strands in the evolution of the legislative framework for international arbitration in recent decades, alongside the following two strands:
46 The Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965), also known as the ‘ICSID Convention’ due to its establishment of the International Center for the Settlement of Investment Disputes (ICSID), was advocated by the World Bank with the aim of encouraging investors to engage in investments in developing countries. It facilitates the resolution of disputes by providing the opportunity for both the country and the investor to arbitrate any disagreement directly. This arbitration can occur either pursuant to an arbitration agreement in a state contract or through a bilateral investment treaty that includes a clause whereby the state consents to arbitrate with investors covered by the treaty (Moses 2017, 9).
47 The European Convention on International Commercial (1961) is a supplement to the New York Convention in the contracting states. It addresses various general matters concerning the rights of parties in arbitration and outlines specific, restricted circumstances under which the setting aside of an award under the national law of one Contracting State can serve as a ground for refusing to recognize or enforce the award in another Contracting State (Moses 2017, 8).
48 The European Convention Providing a Uniform Law on Arbitration (1966) was enacted with the aim of implementing a uniform law on arbitration in civil and commercial matters, aiming to xxxxxx greater unity and facilitate commercial relations among its member states by adopting common rules in the legal domain. However, scholars such as Xxxxxxx (1981) expressed skepticism about the effectiveness of this uniform law in achieving harmonization since during the negotiations of such a uniform law each delegation sought to incorporate as much as possible of the peculiarities of its own law. As he further states, “[e]ach country has its own traditions and traditions are strong” (Xxxxxxx 1981, 67). Instead, Xxxxxxx proposed the adoption of a model law for international commercial arbitration, suggesting that legislators in respective countries could then incorporate a dedicated chapter on international commercial arbitration into their Arbitration Acts based on such a model law. This section outlines the creation of a model law in this context (the UNCITRAL Model Law on International Commercial Arbitration of 1985).
- National arbitration statutes, which refers to the national laws governing the private arbitral arrangement, providing a regulatory framework. Notably, UNCITRAL49 significantly played a substantial role in this aspect by adopting the Model Law on International Commercial Arbitration in 1985.
- UNCITRAL Arbitration Rules, introduced in 1976 and subsequently revised in 2010, 2013 and 2021, offer a set of guidelines for the conduct of arbitration proceedings on an international scale.
Regarding the second strand, the UNCITRAL Model Law, currently adopted in 88 States in a total of 121 jurisdictions50, was initially adopted in 1985, with subsequent amendments in 2006. The UNCITRAL Model Law had to serve as “a model of domestic arbitration legislation, harmonizing and making more uniform the practice and procedure of international commercial arbitration while freeing international arbitration from the parochial law of any given adopting state” (Hoellering 1986, 327). Its creation was driven by the objective of assisting states in reforming and modernizing their arbitration laws. The main goal was to reduce divergences and ambiguities51 in the interpretation of the New York Convention while minimizing potential conflicts between national laws and arbitration rules52. As Born notes, “the Model Law and its revisions represent a significant further step, beyond the New York Convention, towards the development of a predictable “pro- arbitration” legal framework for commercial arbitration” (2021, 119).
Furthermore, it is crucial to emphasize that the drafting of the Model Law was guided by the following underlying principles (Hoellering 1986, 328-):
1. Party autonomy: The entire framework of the Model Law provides for a wide scope of party autonomy, recognizing it as a fundamental UNCITRAL principle.
2. Consistency with the New York Convention and the UNCITRAL Rules: The drafting of the Model Law was driven by the objective of promoting alignment with and
49 The United Nations Commission on International Trade Law (UNCITRAL) was created in 1966 by the UN General Assembly through Resolution 2205 (XXI). Among its objectives, one of such goals includes the preparation or promotion or adoption of new international conventions, model laws and uniform laws (Xxxxx and Xxxxxx 2013, 2).
50 Status: UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006. Available at xxxxx://xxxxxxxx.xx.xxx/xx/xxxxx/xxxxxxxxxxx/xxxxxxxx/xxxxxxxxxx_xxxxxxxxxxx/xxxxxx.
51 Specifically, the Model Law delineates the restricted scope of national court interference in the arbitral process, clarifies the grounds for annulling international arbitral awards, and prescribes the types and extent of judicial support for international arbitrations (Born 2021, 119).
52 Report of UNCITRAL on the Work of Its Twelfth Session, 34 UN GAOR Supp. (No. 17), at paras. 78-80, UN Doc. A/34/17 (1979), quoted in Hoellering 1986, 328.
adherence to the policies and principles that underlie both the New York Convention and the UNCITRAL Arbitration Rules, which should be maintained and promoted due to their success and widespread recognition across numerous countries.
3. Scope - Broad definitions of ‘International’ and ‘Commercial’: From the outset, a purposeful decision was made to limit the Model Law’s applicability strictly to international commercial arbitration. This choice arises from recognizing the special requirements associated with transnational dispute resolution and the varied interpretations of the term ‘commercial’ across different jurisdictions. To provide clarity and certainty in the realm of dispute settlement for international commercial transactions, the Model Law adopts broad definitions, aiming to encompass a wide range of scenarios within the global context.
4. Limited court intervention: Another important objective was to establish a balanced relationship between arbitration and the courts. In the Model Law, courts are primarily designated to offer support and assistance to the arbitral process, with the intention of avoiding interference.
5. Broad arbitrator authority: According to the Model Law, arbitrators are provided with greater authority and power to make specific decisions, restricted solely by contrary agreement of the parties.
Regarding the third strand, the UNCITRAL Arbitration Rules, formulated through the collaborative efforts of esteemed experts representing different legal systems worldwide, were officially adopted in 1976 (Xxxxx and Xxxxxx 2013, 5). The UNCITRAL Arbitration Rules underwent revision in 2010, prompted by an article authored by Xxxxx Xxxxxxx (2004), the primary drafter of the 1976 Rules. The Working Group responsible for amending the Rules exercised great care in their updates, ensuring alignment with the changes observed in arbitral practice over the past thirty years. Their objective was to tailor the Rules to the changing dynamics of arbitration, emphasizing adaptability rather than introducing unnecessary complexity. As a result, these Rules have “emerged globally as the dominant and most influential set of arbitration rules” (Xxxxx and Xxxxxx 2013, 2).
Since 1980, numerous developed jurisdictions have enacted modern arbitration statutes, signifying a clear and definitive acknowledgement of the international acceptance of the arbitral process. These national arbitration statutes have undergone gradual refinement, reflecting a persistent dedication “to international arbitration as a means of resolving transnational commercial disputes - and thereby promoting international trade - and to continually improving the arbitral process in response to changing conditions and emerging
(or re-emerging) critiques” (Born 2021, 63). Born (2021, 110) additionally notes that in civil law jurisdictions, early arbitration legislation was often integrated into the national Code of Civil Procedure, a practice that persists in several jurisdictions to this day. Conversely, in common law jurisdictions, the inclination historically has been and continues to be the enactment of separate legislation specifically addressing arbitration.
The subsequent section will delve into the current international commercial arbitration frameworks of specific common law and civil law countries, which are pivotal for the purposes of this study. Such countries include the United Kingdom, the United States, Singapore, Hong Kong, France, Switzerland and Italy.
3.4 Current international commercial arbitration frameworks in common law and civil law systems
This section presents an examination of the existing international commercial arbitration frameworks in civil law and common law countries, focusing on those relevant to the study's scope. After providing an overview of the key characteristics of both civil law and common law legal traditions, the discussion explores the specific international commercial arbitration frameworks in selected jurisdictions within these traditions. This set of jurisdictions encompasses common law countries, specifically the United Kingdom (3.4.1), the United States (3.4.2), Singapore (3.4.3), and Hong Kong (3.4.4), alongside civil law countries, namely France (3.4.5), Switzerland (3.4.6), and Italy (3.4.7).
Civil law and common law exhibit numerous distinctions, and a comprehensive exploration demands a dedicated and extensive study involving in-depth analysis and explanations. Therefore, this section endeavors to provide a concise overview, emphasizing representative examples that illustrate the disparities between civil law and common law. The examples presented aim to offer insight into the diverse legal concepts characterizing these two major legal traditions, laying the groundwork for the subsequent examination on the civil law and common law countries discussed in the following subsections.
Each legal system possesses distinct characteristics. However, they can be classified into groups of legal families sharing common features in terms of legal history, legal thinking, and positive rules (Siems 2018, 50). The two primary legal families or traditions worldwide are the civil law and the common law (e.g., Xxxxxxxxxxx 1981, 381; Sacco 1991, 4; Xxxxxx and Xxxxxxxx 1997, 2; Xxxxxxxxxxx 1998, 390; Xxxxxx and Pes 2008, 267; Xxxxxxxxx 2013, 36). Summarizing the differences and similarities between civil law and common law systems is a complex task; however, it can be asserted that the main distinctions or loci oppositionis (Xxxxxx and Pes 2008, 273) between the two revolve around their origins, sources of law, the role of precedent, and the approach to making legal decisions. These points are briefly elaborated upon below:
1. To comprehend the distinction between civil and common law, it proves beneficial to look into the historical foundations of both legal traditions. Civil law traces its roots back to Roman law, encompassing the legal system derived from the jurisprudence practiced in the Roman Empire, notably articulated in the compilations
by Xxxxxxxxx and his successors collectively known as the Corpus Iuris Civilis53 (Garzone 2007, 15). Subsequently, under the influence of this legacy, civil law has undergone development in Continental Europe and various other regions across the world. A distinctive characteristic of civil law lies in its embodiment within civil codes, described as comprehensive statutes with a systematic, authoritative nature that serves as a guiding framework outlining the rights and duties of individuals (Pejovic 2001, 9). The majority of civil codes was enacted during the 19th and 20th centuries (Siems 2018, 51), including notable examples such as the French Civil Code of 1804, Austrian Bürgerliches Gesetzbuch of 1811, German Bürgerliches Gesetzbuch of 1896, Japanese Minpo of 1896, Swiss Zivilgesetzbuch of 1907, and Italian Codice Civile of 1942. Despite variations among the civil codes of different countries, common features bind them together. These codes regulate practical scenarios comprehensively, and in cases not explicitly addressed, courts are tasked with applying general principles to fill the gaps in the legal framework (Pejovic 2001, 7).
Conversely, the common law evolved primarily through the adjudication of specific disputes by judges, retaining noticeable traces of its historical origins (Garzone 2007, 4). The common law system in England originated in 1066 after the Xxxxxx xxxxxxxx (Xxxxxxxxx 2013, 36), with Xxxxxxx the Conqueror establishing a feudal system of land ownership and a court system. Standardized forms of action, known as ‘writs’54, became the foundation of common law (Criscuoli and Serio 2016, 109-112). Initially, royal influence was significant, but in the 17th century, Parliament intervened to protect property rights and establish a more independent judiciary. Over time, judges developed more detailed judgments, transforming the procedural origins of writs into substantive rules (Siems 2018, 52).
2. Another crucial difference between civil law and common law concerns the sources of law. Both civil law and common law recognize statutes as politically legitimized sources of law (Xxxxxx and Pes 2008, 273). However, in civil law, the primary sources
53 The Corpus Iuris Civilis is the collection of normative material and jurisprudential material of Roman law, established by the Byzantine Emperor Xxxxxxxxx X to reorganize the legal system of the Byzantine Empire.
54 The so-called ‘writ’ served as the essential tool through which royal justice could exclusively operate. It also served as the means by which the king could intervene in ‘lower justice’ (Xxxxxxxxx and Serio 2016, 111). Essentially, the ‘writ’ was an order from the sovereign, drafted in the form of a letter, written in Latin on parchment, and authenticated by the royal seal. The ‘writ’ was “addressed to the sheriff or other officer of the law, or directly to the person whose action the court desires to command, either as a commencement of a suit or other proceeding or as incidental to its progress and requiring the performance of a specific act, or giving authority to have it done” (Xxxx 1952, 1).
of law are written codes and statutes enacted by legislatures (Xxxxxxxxx 2013, 36). The fundamental principles and rules are encapsulated within these codes and statutes, serving as the primary sources applied by the courts. As a result, codes and statutes take precedence, relegating case law to a secondary position as a source of law.
In contrast, the common law system predominantly relies on the creation of law through judicial decisions, considering them as the primary repositories of common law (Pejovic 2001, 10). As previously mentioned, during the 19th century, civil law countries undertook the codification of various legal branches, prioritizing abstract, systematic, and self-contained treatments. Such codes were “founded on the belief that a rational, systematized, and comprehensive legal system would be an improvement on traditional law” (Glendon et al. 2016, 54). This codification approach aimed to anticipate “as completely as possible all relevant issues in particular branches of law” (Siems 2018, 53). In contrast, common law countries, with exceptions such as the United States’ Uniform Commercial Code55, have tended to consolidate case law without a comparable systematic framework. As noted by Xxxxxxx et al., in common law systems “[t]he judiciary believes that due accord to social change is illustrated by the development of common law decisions” (2016, 363).
Over the past two centuries, the interpretation of civil law codes has evolved, moving beyond a strict adherence to the literal text. Contemporary methods involve considering historical background (exegetical method) and the law’s objective purpose (teleological method) (Siems 2018, 54). On the other hand, common law statutory interpretation traditionally adheres to the literal rule, focusing on the text unless the outcome would be absurd (golden rule) or fails to adequately address the law’s intended remedy (mischief rule) (Xxxxxxxxx and Serio 2016, 374-375). However, similar to civil law countries, there has been a trend in common law towards incorporating legislative history and purpose into interpretation (Siems 2018, 55).
3. It is also essential to note that common law tends to adopt a more restricted statutory interpretation due to its reliance on case law as the primary source. In both civil and common law systems, judgments carry binding force among the parties involved in
55 As highlighted by Xxxxx (2018, 53-54), Xxxxxx and Pes (2008, 273), the United States’ Uniform Commercial Code represents an exception. Generally, codifications in common law countries are rare and have predominantly been ex-post consolidations of previous case law treated as statutes (Xxxxxxxxx 2013, 38), with limited efforts to systematize the topics.
the trial, a principle known as res iudicata. However, the distinctive feature of common law countries lies in the broader influence of judgments (Siems 2018, 66). In these jurisdictions, legal decisions not only conclusively resolve individual cases but also establish precedents for future ones (Xxxxxxxxx 2013, 34), a concept encapsulated in the ‘doctrine of stare decisis’, also known as the ‘doctrine of binding precedent’ or ‘English doctrine of precedent’. Specifically, in English law, this rule states that precedents, under certain conditions, are binding, meaning they must be followed for subsequent similar cases. However, this rule is not absolute for two reasons: first, it is closely tied to the hierarchy of courts, as the binding force applies more strongly to precedents from Superior Courts, given their greater authority; secondly, the binding or normative force of a judgment only concerns a part of its content, namely its core reasoning or ratio decidendi (Xxxxxxxxx and Serio 2016, 268- 269).
Diverging from the common law tradition, civil law countries typically operate on the premise that prior court decisions lack binding authority, and case law is not considered a primary legal source (Pejovic 2001, 11). Consequently, judges in civil law systems have more freedom to interpret and apply statutes without strict adherence to precedents56. However, this assertion requires clarification, as specific laws in certain civil law jurisdictions confer binding status on decisions from supreme courts. Furthermore, in common law courts, the examination of precedents involves a detailed analysis to extract the ratio decidendi and a thorough consideration of the facts. In contrast, civil law countries often extract legal principles from court rulings, minimizing the relevance of the specific facts for future cases (Siems 2018, 67-68; Xxxxxx and Pes 2008, 273).
4. Other important differences between civil law and common law concern the courts and civil procedure. While both legal traditions involve professional judges, common law countries often exhibit a higher prevalence of juries (Xxxxxx and Pes 2008, 276). Historically, juries in the common law tradition played a substantial role in fact- finding for both civil and criminal cases. However, in many common law jurisdictions, civil law juries have largely disappeared, except in the United States, where the jury is considered integral to their culture and democracy. Conversely, in civil law countries, the use of juries has varied, mostly being limited to criminal trials
56 It is important to highlight that while in common law courts have the double purpose of solving the individual conflict and developing the law, the civil law judge has the task of identifying the legal rule, interpreting it, and applying it to the case at hand . As a result, the civil law judges have to implement the law rather than actively contributing to its development (Siems 2018, 56).
(Siems 2018, 60).
Regarding trials, within the common law, they are marked by a single oral event where all evidence is presented (Xxxxxxx et al. 2016, 331-332). This focus on orality is closely associated with the common law countries’ frequent use of juries. In contrast, civil law countries traditionally favor written proceedings, giving preference to written communications over oral testimony (Xxxxxxx et al. 2016, 145) and dividing the trial into multiple procedural steps (Siems 2018, 61). Additionally, the roles of participants differ in civil law and common law trials. In civil law countries, the judge is often perceived as more managerial, providing guidance to the parties and having a duty to possess a comprehensive understanding of the law. On the contrary, in common law countries, the judge is traditionally viewed as more neutral (Siems 2018, 62-63). Furthermore, common law trials adhere to an adversarial system where parties actively participate and are considered “adversaries leading the proceedings” (Pejovic 2001, 20). Through the discovery of documents, parties disclose documents and information deemed relevant to the matter at hand, enabling the judge and the counterparty to access that information. In contrast, civil law trials are regarded as inquisitorial as they are less confrontational. In such a procedure, the judge takes an active role in clarifying the issues and examining the witnesses (Xxxxxxx et al. 2016, 145). Finally, concerning the evidence, in common law, parties play a substantial role in questioning witnesses, appointing expert witnesses, and presenting documents, while in civil law countries, judges bear a greater responsibility for fact-finding and establishing the truth (Pejovic 2001, 21-22).
5. In conclusion, a final consideration pertains to the drafting of judgments in civil law and common law countries, a matter of particular relevance for the subsequent chapter of this study where these differences are explored. As noted by Xxxxx, “Important elements of a particular legal system are its drafting tradition and stylistic conventions” (2008a, 234). In essence, civil law countries are predominantly characterized by generality, while common law exhibits a preference for particularity (Gotti 2008a, 235). This observation is echoed by Xxxxx, who asserts that “Common law judgments give a detailed account of the facts, and the reasoning is inductive, discursive and pragmatic”, also including, in some instances, “a detailed treatment of previous cases” (2018, 65). In contrast, “The style of judgments in civil law countries reflects their more deductive mode of reasoning [...], [thus being] more