by Matthew S. Erie
in "Comparative and Transnational Dispute Resolution" (ed., Shahla Ali) 2023
Available here.
Abstract
There are, broadly speaking, two general ways to study transnational dispute resolution, understood as international arbitration, transnational litigation, and business mediation. The first is the “legal-formalistic” approach and the second is the “social scientific” one. The former emphasizes doctrine and the different types of rules that comprise specific dispute resolution regimes. The second is empirical, uses quantitative or qualitative data, and focuses less on rules and more on structures of power and hierarchy, or the space, networks, and ritual, through which such rules operate. While there is no one “right” way to study transnational dispute resolution and these methods inform different types of research projects or questions, these two methods are largely seen as at odds, with the legal-formalistic approach predominant in the legal academy. As part of a broader effort to foreground the question of method in the study of transnational dispute resolution, this chapter opts for a different perspective by borrowing from the anthropology of experts to suggest that “para-ethnography” is one way to build synergies between the legal-formalistic approach and the social scientific one. Specifically, this chapter draws on data collected for a larger project on “new legal hubs” (NLHs), “one stop shops” for cross-border commercial dispute resolution, in financial centres, promoted as an official policy by nondemocratic or hybrid (i.e., democratic and authoritarian) states, located primarily in Asia. NLHs showcase the native theories of dispute resolution experts who design, manage, and operate such hubs. Juxtaposing their theories and processes of knowledge production, on the one hand, with those of scholars, on the other hand, requires considering both formal rules and contextual questions of power, hierarchy, and space, thus presenting a more holistic view of transnational dispute resolution.
