chapter  2
22 Pages

ICA in the Context of Theories of Legal Discourse

The unprecedented success of international commercial arbitration in the last decades of the twentieth century, and the characteristic features of this method of resolution of private, cross-border disputes, lead to a question of the determinants and status of legal interpretation in ICA. This chapter aims at placing arbitration – an anational, highly prosperous, privately developed alternative to Stateadministered litigation – in the context of contemporary theories of legal discourse and legal interpretation. When approached with regard to its historical development, arbitration may serve as an illustration of the prevalence of discursive, dynamic, non-linear models of legal reasoning over the syllogistic, linear ones, based on the Montesquieuan claim that the role of an adjudicator is to be no more than the mouth of the law.1 However, the recent, observable trend of judicialization or colonization of arbitration by litigation (as discussed in detail in Chapter 5) calls for a renewed interest to be paid to conceptualizations of legal interpretation in arbitral decision-making.