Jemielniak on the use of comparative analysis in international commercial arbitration
Associate Professor Joanna Jemielniak published the article Comparative Analysis as an Autonomization Strategy in International Commercial Arbitration in International Journal for the Semiotics of Law.
The article explores the unique character of international commercial arbitration as a globalized phenomenon, where harmonizing effects have largely been achieved by private means and spontaneous expansion, outside the States’ direct intervention and control. Privatization of the area of commercial dispute resolution is examined in the context of its growing autonomization, marked—as observed by Emmanuel Gaillard—by notable changes in its theoretical representations and narratives.
Arbitral decision-making is exercised in a legally, linguistically, and culturally diversified environment. Interpretation and application of law in arbitral cases requires skillful navigation between the rules of domestic, international and transnational origin, performed not only on the level of substantive norms, but also on those of conflict of laws and procedure. As a consequence, comparative analysis plays a critical and complex role in arbitral decision-making, reaching beyond the mere demands of rendition of relevant provisions. The article examines this phenomenon and its mechanics, the resulting challenges for legal professions and the effect of transnationalization of relevant domestic rules.