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Legal Discourse across Cultures and Systems

Legal Discourse across Cultures and Systems

Vijay K. Bhatia
Christopher N. Candlin
Jan Engberg
with the assistance of Jane Lung
Copyright Date: 2008
Pages: 356
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  • Book Info
    Legal Discourse across Cultures and Systems
    Book Description:

    What exactly is legal about legal language? What happens to legal language when it is used across linguistic, national, socio-political, cultural, and legal systems? In what way is generic integrity of legal documents maintained in multilingual and multicultural legal contexts? What happens when the same rule of law is applied across legal systems? By bringing together scholars and practitioners from more than ten countries, representing various jurisdictions, languages, and socio-political backgrounds, this book addresses these key issues arising from the differences in legal or sociocultural systems. The discussions are based not only on the analysis of the legal texts alone, but also on the factors shaping such constructions and interpretations. Given the increasing international need for accurate and authoritative translation and use of legal documents, this important volume has considerable contemporary relevance in a globalized economy. It will appeal to discourse analysts, commercial consultants, legal trainers, translators, and applied researchers in professional communication, especially in the field of legal writing and languages for specific purposes.

    eISBN: 978-988-8052-50-9
    Subjects: Linguistics

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgements
    (pp. vii-viii)
    Vijay Bhatia, Christopher Candlin and Jan Engberg
  4. List of Contributors
    (pp. ix-xiv)
  5. Introductory

    • 1 Concepts, Contexts and Procedures in Arbitration Discourse
      (pp. 3-32)
      Vijay K. Bhatia, Christopher N. Candlin and Jan Engberg

      Although legal language has long been the focus of attention for legal philosophers and sociologists (Austin, 1962; Mellinkoff, 1963; Searle, 1965, Allen, 1957; Atkinson and Drew, 1979; to mention only a few), its attraction for linguists and discourse analysts has been of relatively recent origin. Legal language started attracting somewhat adverse publicity in the mid-seventies, when campaigns for reforms in legislative expression gained momentum, especially in the USA and the UK (see Renton Committee Report, 1975). Popularly known as the Plain English Campaign, it brought into focus the question of incomprehensibility of legal expression from the point of view of...

  6. Perspectives and Issues

    • 2 Mixing Legal Cultures in International Arbitration: The Iran-United States Claims Tribunal
      (pp. 35-52)
      Peter Malanczuk

      At an early stage of the work of the Tribunal, the late Richard B. Lillich characterized the Iran-United States Claims Tribunal as the most significant body in arbitral history.¹ Now that the Tribunal, after more than 20 years of its existence, seems to be coming towards the end of its work, with only a few cases left to decide or to settle, it may be the right moment to reconsider this assessment with some more hindsight and discuss the lessons that may be learnt from the Tribunal in mixing legal cultures.²

      Much has been written on the Tribunal in general...

    • 3 Hybrid Dispute Processing in Japan: Linking Arbitration with Conciliation
      (pp. 53-74)
      Yasunobu Sato

      There are mixed responses with respect to the existing practice of international arbitration in Japan, in which the arbitrator virtually dictates the conciliation method. American lawyers largely criticised it (Ragan, 1991). Nevertheless, there is also favourable interpretation contending that the practice enables more flexible solutions for individual cases (Tashiro, 1995 and Neuman, 1998). Aside from this, for more than a decade, Japan’s bar associations have engaged in civil and commercial dispute processing services, as alternative to domestic litigation, through an office called the “Bar Association’s Arbitration Centre.” Reportedly, this can trace its beginning to a construction arbitration service mostly by...

    • 4 Confidentiality in Arbitrations
      (pp. 75-108)
      Christopher To

      Confidentiality, like privacy, has long been perceived as one of the prime advantages of arbitration² and the very reason why parties opt for arbitration as opposed to public Court proceedings to resolve disputes. Until the recent decade or so, confidentiality was taken for granted and widely assumed as the fundamental feature of arbitration in the international arbitral regime.³ This assumption cannot be whole-heartedly assumed today as the scope of arbitral confidentiality is “far from a settled issue”.⁴

      Eight years on from the dramatic decision by the High Court of Australia in Esso Australia Res. Ltd v. Plowman,⁵ there is still...

    • 5 International Commercial Arbitration in India: A Study of Discursive Practices
      (pp. 109-124)
      Kusum Dhanania

      This chapter undertakes a critical discourse analysis of arbitration proceedings in International Commercial Arbitration in India in the context of globalisation. The study demonstrates the differences in the discourses of Commercial Arbitration proceedings in India, whether domestic or international, when influenced by (a) the adversarial legal practice typical of litigation and (b) by arbitration practices undertaken by non-legal participants, especially in commercial arbitration cases. The chapter seeks to identify the patterns of discourse in dispute resolution mechanisms: legal practice, arbitration, and Alternative Dispute Resolution (ADR). From the point of view of the disputant ADR like negotiation and conciliation are seen...

  7. Comparative Analysis and Interpretation

    • 6 Interpretation across Legal Systems and Cultures: A Critical Perspective
      (pp. 127-144)
      Vijay K. Bhatia and Christopher N. Candlin

      Recent trends in global trade and commerce have made international commercial arbitration an increasingly important area of development. With this new development it has become more likely than ever before that laws written in one specific context are being interpreted in another or several other contexts at the same time. In the context of such developments, especially where economic, trade, financial, and commercial interests of individual countries are at stake, laws are carefully written with two somewhat conflicting objectives in mind: firstly, to make them look internationally competitive, fair and transparent, and secondly, to make them serve national interests, not...

    • 7 Vagueness and Indeterminacy in Law
      (pp. 145-168)
      Jan Engberg and Dorothee Heller

      Everyday experience with language in practice shows that it is not always clear what a sender means when he or she employs language for communication. This is especially true in the area of law.² Stated informally, the main reason for this lack of clarity is that it is not possible for the receiver of a message to determine exactly what the sender is referring to in the world. However, this observation covers a wide variety of different phenomena. Some examples are:

      a. The use of context-dependent deictic expressions like this Act, where the receiver needs to access knowledge about the...

    • 8 Powers of the Court in the Malaysian Arbitration Act
      (pp. 169-180)
      Azirah Hashim

      This chapter focuses on the general powers of the High Court in the Malaysian Arbitration Act to ascertain similarities and differences that exist between the UNCITRAL Model Law of 1985 and the Arbitration Act of Malaysia of 1952 (“the Act”), respectively. It also examines some of the linguistic features found in the relevant sections of the Act. References to related cases are included to illustrate the judicial interpretation of the language in the Act in the different sections involving powers of the High Court and the implications of the language used.

      The High Court has a vast range of powers...

    • 9 Discourse Systems in English Arbitration Awards
      (pp. 181-198)
      Girolamo Tessuto

      This chapter provides a descriptive and critical analysis of a recent specimen of an English arbitral award relative to consumer disputes which I obtained from the Chartered Institute of Arbitrators in London. The analysis will be twofold: firstly, I will examine the drafting format of the final award based on the Arbitration Scheme for the Travel Industry Rules, which focuses on a claim for compensation arising from a breach of contract in the travel industry. Secondly, I will describe and comment on the lexical, syntactic and modality realizations in this discourse type seen as language in use and social interaction,...

    • 10 Rhetorical Strategies in Arbitration Law
      (pp. 199-220)
      Anna Trosborg

      The two primary functions of law are the ordering of human relations and the restoration of social order when it breaks down. With regard to the latter, we are concerned with the way in which language is used to maintain justice in cases of conflict, either between citizens in the case of civil law or between the individual and the state in the case of criminal law. Arbitration law is a particular case of resolving conflict within civil law.

      With regard to text type, the contextual focus of arbitration law is the instructional text type. Two subtypes have been specified...

    • 11 Cultural Constraints on Arbitration Discourse
      (pp. 221-252)
      Maurizio Gotti

      In recent years, the dismantling of cultural, disciplinary and national barriers, especially in the context of co-operation and collaboration in international trade, has accelerated moves towards the globalisation of socio-cultural, business and communication issues. In this context, law is fast assuming an international perspective rather than remaining a purely domestic concern. A case in point is international commercial arbitration. This paper aims to investigate the means whereby normative discourse (statutes and regulations) is employed in different cultural, linguistic and legal environments; to illustrate this phenomenon, it targets legislation on international arbitration from the ‘Model Law on International Commercial Arbitration’ issued...

  8. Applications and Implications

    • 12 Arbitration in Sport
      (pp. 255-274)
      Paola Evangelisti Allori

      The purpose of the study is to analyse from a cross cultural perspective some of the discursive practices of legal practitioners in the field of arbitration in sports. It will focus on some of the relevant rhetorical and textual features of the legal discourse exhibited by the International Code of Arbitration for Sport, issued by the International Council for Arbitration in Sport (ICAS), and the Code for Conciliation and Arbitration for Sport, recently issued by the Italian ‘Camera di Conciliazione e Arbitrato per lo Sport’ established within the Italian Olympic Committee (CONI).

      Within the wider field of linguistic studies on...

    • 13 Implications of Legal Globalisation for Brazilian Legal Practice
      (pp. 275-290)
      Celina Frade

      Most commonly related to economics and the agenda of the so-called neoliberalism,¹ the phenomenon of globalisation is in fact a part of more complex structural and strategic processes. It subsumes other subsystems — such as politics, education and law — and their actors acting globally on different spacio-time scales (Jessop 1999 and 2000).

      Globalisation relies on two particular symbolic media of communication to mediate relations among institutions, organizations and actors on a global scale: law and language. In the first case, globalisation is legal-driven in its general intent to cover all legal relations within a global society. In the second case, globalisation...

    • 14 Translation in International Arbitration
      (pp. 291-308)
      Susan Šarčević

      Globalization and harmonization are dominant trends in international arbitration today. As a result of the globalization of international trade, the number of international disputes submitted to arbitration has increased tremendously in recent decades with actors from all continents speaking a multitude of languages. Thanks to the worldwide acceptance of international instruments, such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and especially the UNCITRAL Model Law on International Commercial Arbitration, a high degree of harmonization has already been achieved in national arbitration laws. The Model Law has been accepted in whole or in part...

    • 15 Translating Terminology in Arbitration Discourse
      (pp. 309-328)
      Marta Chroma

      Legal language has for decades been subject to the attention of both lawyers and linguists. While the lawyers have concentrated on how to express, and subsequently identify, legal information so that law may be applied, the linguists have focused on purely linguistic aspects, such as means of expressing a tone of normativity, or of serving frequently intended vagueness of legislative texts.

      The purpose of the lawyers’ research into the language has mostly been to achieve more efficient legal communication (pro futuro research): “If legal language is to become a clearer and more efficient means of communication, we need to identify...

  9. Index
    (pp. 329-340)