Legal Reasoning Across Commercial Disputes —— Comparing Judicial and Arbitral Analyses

----- 商事争议中的法律推理：司法和仲裁分析的比较

ISBN: 9780198842842 出版年：2020 页码：417 Strong, S I Oxford University Press

Although commercial arbitration is often considered to be the functional equivalent of commercial litigation, many scholars and policymakers routinely downplay the value of arbitration, characterizing it as a type of “second class justice.” One of the primary reasons for the devaluation of arbitration is the lack of understanding about the degree of sophistication and complexity associated with commercial arbitration, particularly international commercial arbitration. Legal Reasoning Across Commercial Disputes addresses this problem by undertaking a multi-pronged empirical analysis of legal reasoning in commercial disputes and comparing the data across three different axes: the judicial-arbitral divide, the domestic-international divide and the common law-civil law divide. In so doing, the text provides important insights into how judges and arbitrators resolve complex commercial disputes in a variety of settings. The study not only helps parties make more informed choices about where and how to resolve their legal disputes, it also improves counsel’s understanding about how to best to craft and present legal arguments and submissions. Judges, arbitrators, and scholars benefit by having hard evidence on the beliefs and behaviors of commercial decision-makers around the world. Chapter one provides an introduction to the book and outlines the theoretical debates relating to legal reasoning in commercial dispute resolution, paying particular attention to distinctions across the three major lines of analysis (judicial-arbitral, domestic-international and common law-civil law). This discussion establishes the foundation for the three interrelated studies that are at the heart of this text: a large-scale international survey of judges and arbitrators, a series of semi-structured interviews of judges and arbitrators, and a detailed quantitative (coded) analysis of judicial decisions from three different jurisdictions and of arbitral awards from domestic and international commercial disputes. In so doing, the study tests and builds upon longstanding assumptions about legal reasoning in commercial dispute resolution, providing unique, evidence-based insights into this important area of law.