Joshua Karton

Pembroke College

The Culture of International Arbitration and the Evolution of Contract Law

In his forward to the first edition of Martin and Hunter’s essential treatise, Law and Practice of Commercial Arbitration, the late Sir Robert Jennings remarked that arbitration is “uncommonly well adapted to developing new rules and practices better suited to the conditions of the modern world.”  Indeed, businesses in international commerce typically choose to resolve their disputes by arbitration because of its procedural characteristics, such as confidentiality, flexibility, speed, low cost relative to litigation, and the parties’ ability to appoint an arbitrator.   Not surprisingly, therefore, the great majority of scholarly literature on arbitration relates to its procedure.  My thesis will attempt to provide a small counterbalance to this predominance of procedural commentary by exploring how international commercial arbitration tribunals apply substantive law.  How and how much does contracting parties’ procedural choice to settle a dispute by arbitration shape the substantive laws and rules that may determine the outcome of that dispute?   My thesis explores how the norms, values and interests that predominate among international arbitrators--which I characterise collectively as the "culture" of international commercial arbitration--affect arbitral decision making. I examine in turn the three areas in which substantive contract law arises in arbitration: arbitrators' choice of law, their application of national contract laws and international contract law instruments such as the CISG, and their recognition and application of general principles of contract law. This research shows that international arbitral tribunals are increasingly applying contractual principles in a manner consistent with each other but not consistent with any particular national law that governs a given dispute.  I argue that the culture of international commercial arbitration leads arbitrators to promote particular contract law principles and to create and disseminate new transnational contract law principles. As a result, international commercial arbitrators constitute a significant force in the evolution of contract law.

Start Date: 2006/10.

End Date: 2010/08.

EDUCATION

University of Cambridge, Pembroke College, Cambridge, UK, PhD in Law, expected

Honors:

• Cambridge Overseas Trust Scholarship (Hon.), 2006
• Fellow of the Cambridge Overseas Society

Columbia University School of Law, New York, NY, Juris Doctor, 2005

Honors:

• Harlan Fiske Stone Scholar (academic honors), 2002-2005
• Greer Public Service Fellowship, 2003
• Public Interest Law Foundation Fellowship, 2003

Yale University, New Haven, CT, Bachelor of Arts in Political Science and Humanities, 2001

Honors:

• Departmental honors in Political Science

EMPLOYMENT

Queen's University Faculty of Law, Kingston, Ontario, Canada

     Assistant Professor, 2009-

Pembroke College, Cambridge University, Cambridge, UK

     Supervisor, Conflict of Laws, 2007-2008

Cleary Gottlieb Steen & Hamilton LLP, New York, NY

    Associate, 2005-2006
    Summer Associate, 2004

Columbia University Law School, New York, NY

     Teaching Assistant (Mediation Clinic) to Prof. Carol B. Liebman, Fall Semester 2004
     Research Assistant to Prof. George A. Bermann, 2004
     Teaching Assistant (Torts) to Assoc. Prof. Catherine M. Sharkey, Fall Semester 2003
     Research Assistant to Assoc. Prof. Catherine M. Sharkey, Summer 2003

Legal Aid Society, Criminal Defense Division, New York, NY

     Investigative Intern, Summer 2003

Canadian Trade Office, Taipei, Taiwan

     Project Manager, General Relations, 2001-2002

Embassy of Canada, Beijing, China

     Intern, Political/Economic Division, Summer 2000

PROFESSIONAL AFFILIATIONS AND ACTIVITIES

• New York State Bar, admitted December 2006
• Columbia Journal of Transnational Law, Solicitations Editor, 2004-2005
• Willem C. Vis International Commercial Arbitration Moot, Arbitrator and Coach of the Columbia University Law School team, 2005-2008
• Safe Horizons (court-annexed alternative dispute resolution program in New York), Volunteer Mediator, certified 2005
• International Center for Dispute Resolution, “Young and International” associate, 2005-

LANGUAGES

Proficient in French and in spoken Mandarin Chinese

 

• private international law
• international commercial arbitration
• comparative contract law
• international sales
• sociology of law
• language

Articles

"Party Autonomy and Choice of Law: Is International Arbitration Leading the Way or Marching to the Beat of its own Drummer?"  (forthcoming 2010) 60 University of New Brunswick Law Journal __.

"Contract Law in International Arbitration: the Case of Suspension of Performance" (2009) 58:4 International and Comparative Law Quarterly 863.

"Can the CISG Advisory Council Affect the Homeward Trend?" (with Lorraine de Germiny) (2009) 13 Vindobona Journal of International Commercial Law and Arbitration 71.

"Has the CISG Advisory Council Come of Age?" (with Lorraine de Germiny) (2009) 27 Berkeley Journal of International Law 448.

"Lost in Translation: International Criminal Courts and the Legal Implications of Interpreted Testimony" (2008) 41 Vanderbilt Journal of Transnational Law 1.

 

 

Prof. James Crawford Ms. Louise Merrett

Not yet appointed.