The Role Of Comparative Law In International Arbitration

Author: LawSphereX

Category: Arbitration & ADR

Published: 2026-08-23T21:29:31.26+00:00

Updated: 2026-08-30T07:12:21.530Z

THE ROLE OF COMPARATIVE LAW IN INTERNATIONAL

ARBITRATION

Vaibhav Singh, Jindal Global Law School

ABSTRACT

This paper examines the intersection of comparative law approaches and political elements within the international arbitration system. Building on the foundation readings of Shahla Ali and Joshua Karton, this paper tries to examine the political ramifications of arbitration systems across countries by extending its scope beyond the technical legal framework. The paper also looks at modern political disputes in international arbitration, including opposition to reform projects like the EU’s proposed Multilateral Investment Court. This paper adds to the conversation on comparative public law by showing how arbitration negotiates the difficult balance between efficiency, party autonomy, sovereignty issues, and democratic accountability across many political settings.

I.

Introduction

The intersection of arbitration law with political considerations represents one of the most dynamic and contested areas in comparative public law today. As Shahla Ali aptly observes, "not many fields of law use comparative law as extensively as international arbitration". 1 This remark establishes a basis for investigating how arbitration, especially in contexts involving states and public interests, has emerged as a critical arena for analysing the conflicts between private dispute settlement methods and public governance requirements. Similarly, Joshua Karton also argues in his article that International commercial arbitration represents a fascinating example of comparative law in action. 2 Karton demonstrates the existence and flourishing of comparative law in practice.

3 He proves that the field of international arbitration is fundamentally based on comparative law methodologies, which are present at every level. Although his study deftly captures the comparative legal aspects, this response article expands his paradigm by looking at the political ramifications of international arbitration via a comparative public law perspective. The interconnection between comparative methodology, political authority, and governance systems in arbitration reveals significant insights for contemporary public law discourse. This paper is divided into two parts. In the first part, I will be giving my response on Ali’s comparative methodologies in arbitration law and the evolution of comparative approaches in international arbitration law, and in the second part, my response will focus on Karton’s analysis of ‘too much’ and ‘too little’ law in international arbitration.

I will also be critiquing the contemporary political controversies in international arbitration law. II.

Comparative Methodologies in Arbitration Law Ali recognises a variety of methodological approaches to the comparative study of arbitration law, including historical, linguistic, socio-legal, empirical, and economic approaches.4 Each of these methodologies highlights distinct aspects of the operation of arbitration systems in a variety of political and legal contexts. Ali describes the conventional comparative method as 1 Shahla Ali, ‘Comparative International Arbitration Law’ 2024 The Cambridge Handbook of Comparative Law 610-624 accessed 5 March 2025. 2 Joshua Karton, ‘International Arbitration as Comparative Law in Action’ 2020 University of Missouri School of Law Scholarship Repository accessed 6 March 2025.

3 ibid 294.

4 Ali (n 1) 1.

the process of contrasting arbitration rules across jurisdictions and institutions to improve comprehension of foreign laws and offer more comprehensive solutions to practical problems. The multifaceted character of arbitration as both a legal and political institution is reflected in this methodological diversity. In arbitration law, traditional comparisons are generally organised into topical discussions or jurisdictional analyses. In the previous approach, researchers analyse specific elements of arbitration such as arbitrability, interim measures, or enforcement across various legal systems. 5 In the latter, the focus is on the approaches of specific jurisdictions to various arbitration issues. 6 Both approaches offer significant insights into the conceptualisation of the relationship between private adjudication and public authority across various legal and political traditions.

This is particularly relevant to comparative public law as these methodological approaches can clarify how national systems navigate the tension between private dispute resolution mechanisms and public governance imperatives. The socio-legal perspective on comparative arbitration law is particularly significant for comprehending its political dimensions. 7 Ali's analysis suggests that this approach investigates the functioning of arbitration laws within their social and political contexts, emphasising the disparity between the law as written and the law as practiced. Exploring the interaction between arbitration systems and broader governance structures elucidates the political economy of dispute resolution across various jurisdictions.

Empirical approaches to comparative arbitration law yield data-driven insights regarding the influence of various political and legal systems on arbitration outcomes8, whereas historical approaches examine the evolution of arbitration regimes in relation to shifting political priorities over time. 9

5 Mathias Siems, Comparative Law (3rd edn, Cambridge

Cambridge University Press 2022) 15–18.

6 Jean-François Poudret et al., Comparative Law of International Arbitration (2nd edn, London: Sweet & Maxwell 2007). 7 Dezalay and Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (2nd edn, University of Chicago Press, 1998). 8 Lee Epstein and Andrew D. Martin, ‘Quantitative Approaches to Empirical Legal Research’ in Peter Cane and Herbert M. Kritzer (eds.), The Oxford Handbook of Empirical Legal Research (1st edn, Oxford University Press 2012). 9 James Gordley, 'Comparative Law and Legal History’ in Mathias Reimann and Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law (2nd edn, Oxford University Press 2019).

III.

The Evolution of Comparative Approaches in International Arbitration The traditional comparative method in arbitration studies has undergone substantial evolution in recent decades. Ali's analysis illustrates that researchers utilise different scales of comparison, ranging from targeted studies that investigate "a single topic in two countries"10 to more extensive analyses that encompass "multiple topics in multiple countries"11. This methodological flexibility facilitates a nuanced examination of the approaches to arbitration by various legal and political systems. Certain scholars analyse the comparative aspects of arbitration frameworks in common law and civil law jurisdictions, whereas others investigate the differences within a single legal tradition.

12 This comparative analysis highlights the influence of distinct political and legal cultures on approaches to critical issues in arbitration. Ali observes that scholars in comparative arbitration frequently analyse both national laws and the regulations of international arbitral institutions, including the ICC, AAA, and IBA, among others. 13 Comparative studies have analysed the requirements for arbitrator impartiality, methods for interim measures, and mechanisms for resolving jurisdictional challenges across various institutions. 14 These variations frequently indicate fundamental political philosophies regarding the appropriate equilibrium between party autonomy and public oversight. The comparative perspective is particularly useful in analysing the impact of various political systems on the evolution and implementation of arbitration law.

Ali notes that variations in arbitration laws can be attributed to "cultural, socio-economic, political, judicial, and historical factors". 15 This observation facilitates an examination of the influence of political considerations on arbitration frameworks across jurisdictions, especially in cases involving direct state interests. According to comparative research, pre-dispute arbitration clauses have taken centre stage in American litigation due to the adversarial nature of the system, while 10 Fan Yang, ‘The Proper Law of the Arbitration Agreement: Mainland Chinese and English Law Compared’ (2016) 33 Arbitration International 121 accessed 8 March 2020. 11 Joseph Lee, ‘Court-Subsidiarity and Interim Measures in Commercial Arbitration: A Comparative Study of UK, Singapore and Taiwan’ (2013) Contemporary Asia Arbitration Journal accessed 6 March 2025.

12 Jürgen Basedow, ‘Comparative Law and its Clients’ (2014) 62 American Journal of Comparative Law 821 accessed 9 March 2025. 13 Andrea Nikolic, ‘Independence and Impartiality of Arbitrators in Comparative Arbitration Law with Special Reference to IBA Rules of Ethics’ (2016) Harmonius: Journal of Legal and Social Studies in South East Europe accessed 12 March 2025.

14 Ali (n 1) 4.

15 Ali (n 1) 10.

more extensive consumer protection in arbitration has resulted from European legal traditions and ethos.16 IV.

Political Implication of ‘Too Much’ and ‘Too Little’ Law in International Arbitration In certain facets of international arbitration, multiple laws may be applicable, necessitating a selection by either the parties or the arbitral panel. Karton expands on this by introducing two new concepts, namely, ‘too much law’ and ‘too little law’ in ICA. Simultaneously, a vast array of questions emerges in arbitrations for which no legal precedent exists, necessitating either mutual agreement by the parties or the tribunal's formulation of a rule. 17 Karton's observation regarding "too much law" in international arbitration gains further importance when analysed from a political perspective. He observes that "in many facets of international arbitration, multiple laws may be applicable, necessitating a choice by either the parties or the arbitral tribunal.

"18 This multiplicity signifies not only a technical legal challenge but also the fragmentation of global governance and the competition among various political visions regarding the regulation of transnational activities. Arbitration is fundamentally based on consent, with party autonomy as its guiding principle. At every stage of arbitration, parties possess a significant degree of choice. Laws and jurisdictions are an á la carte, from which parties can freely combine and choose according to their preferences. 19 The phenomenon of “too much law” indicates that parties are compelled to make choices, or, in the absence of such choices, the tribunal is required to make them on their behalf.

Every step of the process is centred around participant choice, which means that ICA wants people to think about the differences in the law, compare and contrast, and figure out which laws work best for them or are acceptable to them given their cultural and legal backgrounds. 20 Karton's second phenomenon, termed "too little law," refers to the occurrence of numerous issues in arbitrations that lack applicable legal rules. 21 This position has substantial political 16 Christopher R Drahozal and Raymond J Friel, ‘Consumer Arbitration in the European Union and the United States’ (2003) 28 North Carolina Journal of International Law and Commercial Regulation 357, 359. accessed 8 March 2025.

17 Karton (n 2) 295.

18 ibid.

19 ibid 307.

20 Basedow (n 11).

21 Karton (n 2) 307.

ramifications due to the necessity of resolving numerous procedural and substantive issues. As it develops in three domains, the phenomenon of inadequate law may also relate to the substantive law governing the dispute's merits, namely, “the application of non-national rules of law, the application of national laws that are underdeveloped or outdated, and the cumulative or concurrent application of multiple laws”.22 Unlike scenarios characterised by ‘too much law’, the phenomenon of ‘too little law’ does not compel parties and arbitrators to undertake comparative analyses. Nonetheless, comparativism persists consistently as the arbitrators and counsels utilise comparative law methods to identify rules in areas lacking them and to clarify the intentionally ambiguous procedural rules that govern arbitration proceedings.23 V.

Analysis

of Contemporary Political Controversies in International Arbitration International arbitration is followed by various kinds of political controversies, which are filed with a wide range of issues that reflect the complexities of state sovereignty, investment protection, and the rule of law. Current discussions surrounding investor-state dispute settlement reveal the political dimensions of international arbitration as it is argued that the settlement mechanism favours corporations over states, leading to unfavourable outcomes. Investor-state dispute settlement has encountered political resistance in recent years, notably through the EU's Investment Court System and the reassessment of investment treaties by emerging countries. The observed trends present political implications regarding the influence of arbitration on state regulatory power and democratic processes.

This backlash manifests in various ways across distinct political systems, mirroring political objectives. Liberal democracies frequently face criticism regarding their legitimacy, transparency, and consistency. The proposal for a Multilateral Investment Court by the EU has gained attraction as this approach demonstrates that traditional arbitration is inadequate for addressing public interest concerns while ensuring consistency in investment law. It was suggested that an optimal balance should be created between private and public interests in international dispute resolution by modifying the grounds for arbitration. The contemporary political controversies

22 Karton (n 2) 310.

23 Karton (n 2) 313.

reflect broader societal debates about governance, equity, and the role of international law in addressing global changes. I would like to indicate that comparative approaches to arbitration are evolving in response to shifting legal and political contexts. The changing environment necessitates continuous communication among governments, businesses, and the general populace. The comparative approaches demonstrate the integration of arbitration systems within broader political economies and show how reforms align with evolving political priorities and notions of legitimate governance. The comparative approaches highlight the integration of arbitration systems within broader political economies and show how reforms align with changing political priorities and concepts of legitimate governance. VI.

Conclusion

It is remarkable that there exists considerable confusion worldwide concerning the appropriate law guiding the arbitration agreement. Some of its solutions can be found through the analysis of comparative international law as by examining it, one can investigate the convergence of comparative methodology, political factors, and frameworks for dispute resolution. Ali and Karton, in their work, have clearly highlighted the significance of comparative study in the development of international arbitration law as the utilisation of comparative study and politics can be easily seen in international arbitration. They stressed on the importance of addressing legitimacy, accountability, and public values in arbitration processes.

In conclusion, I would state that comparative public law offers critical frameworks for analysing these aspects, facilitating the evolution of international arbitration to balance efficiency and autonomy with legitimacy and accountability in various political contexts. The selection of a comparison method by an arbitration comparatist sometimes hinges on the specific topic of the study, given that each approach has distinct characteristics and functions. Given the diversity of arbitration rules, traditional comparative methods allow us to learn from other countries' experiences by comparing the content of laws.

However, non-traditional comparative methods of research in arbitration law not only contribute to our understanding of the field but also help stakeholders in the legislative branch, rule-drafting institutions, judiciary, arbitrators, and dispute resolution process better understand how arbitration law is evolving. 24 The wide variety of approaches to comparative arbitration law is a reflection of the realisation that “as international commercial arbitration is a unique legal, but also social and economic,

24 Basedow (n 11) 855.

phenomenon, dogmatic legal research methods are insufficient for capturing it in its complexity”.25 I believe that glocalization is the most probable future of transnational law in general. A continuous process of comparison and hybridisation will result in the harmonisation of an increasing number of areas of transnational law. Simultaneously, a desirable assortment will persist throughout various disciplines to ensure that individuals have the autonomy to select legal solutions that are appropriate for their unique circumstances.26 25 David L Dickinson, ‘A Comparison of Conventional, Final-Offer, and “Combined” Arbitration for Dispute Resolution’ (2004) 57 Industrial and Labor Relations Review 288,301 accessed 8 March 2021.

26 Anne Marie Slaughter, A NEW WORLD ORDER (1st edn, Princeton University Press, 2004).