Let us think a bit about the purposes of research in international arbitration. Why do we do research in this field? What are we trying to achieve? How good are we at doing that? How has all that changed, if it has, over the last thirty years?
Let me start with general things. In general, it is said that the purpose of any academic discipline, be it within hard sciences, social sciences, or humanities, is to articulate propositions. These propositions together form a system of thought. And this system of thought creates knowledge that is susceptible, if not of verification (think ‘empirical studies’), then at least of rational assent, of rational approval. In other words, it seek to improve our understanding of what has happened and what is likely to happen.
Of course, in law generally, much of what is published in law reviews doesn’t try to do that. It doesn’t really try to produce knowledge. It has more of an advocacy spin. It tries to produce opinion. It is something closer to religion than to social sciences (notice the connotation of the word ‘doctrine’). This type of scholarship identifies itself with the work of an appellate court, chastising or complimenting the lower court. It tries to be part of the substance of the law, to shape doctrines, to offer solutions to judges, arbitrators, and legislators.
To that, we may add what we could call reporting or, less charitably, case law journalism or legislative journalism: we are here in the realm of describing cases and legislative amendments, without really using them to form an overarching system of thought, without really trying to rationalise what is being studied.
Law, of course, is not only a theoretical corpus. It is also a social practice. The way law is actually practiced profoundly shapes the contents of the law. This leads to yet another type of scholarship, on, for instance, how witnesses are and should be cross-examined.
Then of course, there are writings that seek neither to advance our knowledge of law as a theoretical corpus or as a social practice, and not even to form opinions, but that seek to advance our knowledge of the author of the writings: if you need to hire a lawyer who’s good at a certain set of legal question, then I’m your man. Let me write something that demonstrates how good I master these questions. It’s bit like playing the violin in a masterclass.
Now, how about all of this in arbitration? How has it evolved?
First of all, arbitration has grown socially: there are quite more people who write on arbitration today than there were 30 years ago. There are more journals too, and more books.
So there’s more of it. But is it better?
I’d say it is. Be it only because arbitration scholarship, today, is more diversified. I’m oversimplifying, but were there used to be mainly doctrinal work and case law journalism, there is now, in addition to that, conceptual work, epistemological work, sociological work, socio-legal studies, critical systemic work. The methods are more diverse (think of the growth of empirical studies, for instance). There are more political discourses about arbitration, discourses about the social values that arbitration sustains, and whether that is a good idea or not. There is more interdisciplinary work, trying to bring into arbitration theoretical developments happening elsewhere, reaching out more into neighbouring fields (political science, economics, philosophy). To young people, but to everyone really, this would signal that we have more choices now when engaging in arbitration research. The field has become more ecumenical.
And there seem to be more people who write on arbitration whose socio-professional recognition does not depend, or depends to a lesser degree, on their practice of arbitration. This is important because our socio-professional interests, inevitably, shape our epistemology, they influence what we consider valid, interesting, admissible research.
A similar observation can be made about the epistemic community of arbitration – that is, the community of so-called experts (that would be us) that shapes the episteme of arbitration. The community that shapes the knowledge we have of the field, the way in which we come to apprehend it theoretically, to use it practically and to explain its operation. Well, that community has become much more diversified, much more fragmented into sub-communities, for instance the commercial lawyers, the trade lawyers, the public lawyers and the public international lawyers. Each sub-community has a somewhat different understanding of arbitration, and they don’t necessarily really talk to one another. The stars of one sub-community may have a very different standing in another sub-community, if they are known there at all.
As a result, there are more diverse discourses in arbitration today than there were 30 years ago. This matters because it means more experimentation with new ideas, and thus a greater likelihood that something really new emerges, what Thomas Kuhn would call paradigm shifts, what Gaston Bachelard would call epistemological breaks. And these are what we need to make the field progress, these are what is generally considered to make for a healthy scientific discipline.
We are probably still far behind other legal fields, such as international law, which clearly is no longer the intellectual wasteland that it was said to be 20 years ago. My sense is that arbitration is following a similar route, thanks in part, precisely, to the fact that international lawyers, but also political scientists, economists, and even militant NGOs, have joined the fray.