International arbitration, being a private, informal, and non-judicial dispute resolution mechanism, is the preferred method for resolving cross-border disputes. By its nature, it involves parties from different jurisdictions, speaking different languages, and with diverse cultural and legal backgrounds. When these differences converge in arbitration, participants may carry contrasting expectations about how the process should unfold. This can result in misunderstandings – or even conflicts – when the expectations of the parties and the decisions of the arbitrators diverge, sometimes shaped by their respective legal traditions and cultural perspectives.1
International conventions, national laws, and institutional rules offer some basic procedural guarantees and a general framework for arbitration. While they address certain procedural aspects, the majority of decisions are left to the parties' autonomy and the tribunal's discretion. In this context, key questions arise: What do parties expect from the arbitration process, and how are arbitrators' procedural choices influenced by their legal and cultural backgrounds, if at all? Without strict procedural rules in place, a "clash of cultures"2 can sometimes be difficult to avoid, especially in proceedings involving participants with limited experience in international arbitration. This note explores how differing legal traditions can sometimes influence the expectations and conduct of both parties and arbitrators in international arbitration.
The Applicable Legal Framework
There is no universal set of procedural rules in international arbitration. While frameworks like the UNCITRAL Model Law and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the "New York Convention") provide general principles – such as due process, equality of the parties, and party autonomy – most procedural matters are left to the discretion of the arbitral tribunal and the agreement of the parties. Institutional rules, such as those of the ICC, LCIA, and SIAC, offer guidance but remain broad, giving tribunals considerable discretion in shaping the process.
This flexibility is seen as a strength of international arbitration, allowing procedures to be tailored to the specific case. However, this same discretion can create unpredictability. Different parties and arbitrators bring their own legal training, cultural assumptions, and expectations to the process. These differences can lead to procedural gaps being filled in very different ways, which sometimes causes confusion or conflict.
Different Legal Cultures & Divergent Approaches to Procedural Issues in Arbitration
Some of the most commonly cited areas where legal backgrounds influence arbitration procedure include the parties' and arbitrators' approaches to:
- Pleadings and written submissions;
- Rules governing the collection and presentation of evidence; and
- Procedural matters in the post-hearing phase such as cost submissions and the allocation of costs.
These differences are unsurprising and largely stem from the divide between the world's two main legal traditions – common law and civil law systems.
Common vs. Civil Law – A "Clash" of Legal Cultures?
The divide between common law and civil law systems is widely recognised as a prime example, as certain commentators refer to it, of a "clash of cultures" in international arbitration.3 According to commentators, this divide has an impact on how procedural issues are approached. To fully understand these differences, it is important to understand the distinct nature of the two legal systems, particularly in how their judges – or arbitrators – handle fact-finding and evidence:
- In common law systems, proceedings are adversarial. Judges and arbitrators typically take a passive role, acting primarily as neutral "overseers" to ensure fairness and procedural integrity.4 This approach has its roots in jury trials, where the ultimate decision-maker is not the judge but a group of citizens with no legal background or understanding of complex legal matters, and the judge's role is to guide the process rather than actively shape it.
- In contrast, civil law systems are inquisitorial. Judges or arbitrators play an active role in managing the case and are responsible for investigating the facts and applying the law.5 Counsel supports this process but does not drive it. As a result, parties in civil law systems are not usually required to disclose all relevant evidence, particularly if it weakens their case, unlike in common law proceedings, where full disclosure is their duty.6
These foundational differences may sometimes influence various stages of arbitration, from the structure of written submissions and hearings to the presentation of evidence and the allocation of costs.
Written Submissions
Institutional rules typically do not put any limits on the number of parties' written submissions, their length, the amount of details and supporting documentation required for the parties to present their case. This also happens to be one point of divergence between the parties, coming from common and civil law systems:
- In common law systems, parties' written submissions tend to be rather basic, often consisting of a bullet-point list, with no attached evidence or legal arguments. Written submissions in common law are accordingly given less weight, as there is a clear preference for oral presentation of the case.7
- In civil law systems, pleadings, or more accurately, "memorials," are usually lengthy documents that include parties' claims, a description of the facts, and legal arguments, accompanied by exhibits and all supporting documents, all submitted at very early stages of the proceedings.8 Even though the arguments are also presented orally in most cases, civil lawyers tend to rely much more on written documents.
This difference can sometimes lead to one side feeling overwhelmed, while the other feels underprepared.
Evidence Rules & Witnesses
Evidence is another flashpoint. Common law lawyers are used to broad document discovery and cross-examination. Civil law lawyers are more selective with documents and often prefer tribunal-led questioning.
Document production – or discovery, as it is commonly referred to in common law jurisdictions – is the best example of the procedural divide between common and civil law systems:9
- In civil law systems, parties are generally only required to produce the evidence they intend to rely on.10 If one party seeks documents from the other, they must clearly identify the documents and justify their relevance to the case.
- By contrast, discovery in common law systems is far broader. It is often mandatory, and parties routinely request a wide range of documents from each other, even those that may not directly support their own case. This expansive approach to document production reflects the adversarial nature of common law proceedings and can come as a surprise to civil law-trained practitioners.11
Witness testimony is another example of the distinction between civil and common law. Several practical questions often arise:
- Can a party appear as a witness?
- Must witness statements be submitted in writing?
- Are written statements preferred over direct oral examination?
- Is cross-examination required, and if so, how should it be conducted?
Other uncertainties include whether witnesses must take an oath or affirmation when testifying and whether a tribunal can summon a witness on its own initiative, regardless of the parties' preferences. This is especially relevant in some Middle Eastern jurisdictions. These are just a few of the many evidentiary issues that arbitral tribunals must decide on a case-by-case basis.
However, over the past twenty years, significant efforts have been made to harmonise evidentiary rules in international arbitration, leading to the development of the IBA Rules on the Taking of Evidence in International Arbitration (the "IBA Rules"). These rules aim to bridge the gap between different legal traditions and are particularly helpful for parties from diverse cultural and legal backgrounds. While widely used and influential, the IBA Rules are not binding unless adopted by the parties or ordered by the tribunal. They offer broad guidance but leave many important evidentiary issues, such as the burden of proof, legal privilege, and hearsay, unaddressed, relying heavily on the tribunal's discretion.
Post-Hearing Submissions and Costs
Cultural differences are also noticeable in the post-hearing phase. The parties can agree, and arbitrators can decide, whether there will be closing statements and/or only post-hearing briefs, whether the submissions will be made consecutively or simultaneously, and which party will have the last word. However, each party has certain expectations, while arbitrators have their own preferences regarding how these issues will be addressed.
Another example is the cost submissions and allocation of costs. Major institutional rules simply stipulate that arbitrators have discretion to allocate the costs as they deem appropriate, but do not provide guidance on how that discretion should be exercised. European arbitrators often assume that in international arbitration, the loser will automatically pay some portion of the winner's legal costs, a well-known principle also known as "the costs follow the event."12 This is not the case in the US, where the costs do not normally follow the event, and parties are frequently ordered to bear their own costs.13 Opposing expectations inevitably lead to misunderstandings and potential conflict between the participants.14
Do Cross-Cultural Differences Even Matter in International Arbitration Today?
Cultural mismatches in international arbitration are real, but they are increasingly manageable. When parties and arbitrators come from different legal traditions, misunderstandings can easily arise over procedural expectations. If left unaddressed, these differences can erode trust and lead to concerns about the fairness of the process.
However, the landscape is gradually changing. A new generation of lawyers and arbitrators, trained and experienced in the international arbitration environment, is helping to bridge these divides. With greater exposure to cross-border cases, diverse procedural styles, and international best practices, these professionals are more attuned to the importance of cultural awareness and more adept at navigating potential conflicts. As a result, the sharp contrasts between legal traditions are slowly diminishing in practice.
That said, preparation and communication remain critical. Early procedural discussions are the best opportunity to clarify expectations around submissions, evidence, witness handling, and cost allocation. Agreeing in advance on tools like the IBA Rules – or other mutually acceptable standards – can help harmonise approaches. Selecting arbitrators with cross-cultural experience is equally important.
Arbitration is designed to be a fair, flexible, and efficient way to resolve disputes, but fairness is often in the eye of the beholder. Cultural sensitivity, therefore, is not just a matter of etiquette; it is a practical necessity. By acknowledging these differences early on in the proceedings, both parties and arbitrators can turn potential friction into productive compromise, ensuring that international arbitration remains a trusted and effective method of dispute resolution in an increasingly globalised world.
Footnotes
1 A.M. Kubalczyk, Evidentiary Rules in International Arbitration – A Comparative Analysis of Approaches and the Need for Regulation (2015), GJIL Vol. 3(1), pp. 85-86; L. M. Pair J.D, Cross-Cultural Arbitration: Do the Differences Between Cultures Still Influence International Commercial Arbitration despite Harmonization? (2002), ILSA Journal of International & Comparative Law, Vol. 9, Issue 1, pp. 58-59.
2 The term "clash of cultures" is frequently used by certain authors in literature. See, e.g., I. Welser, G. De Berti, Best Practices in International Arbitration, Austrian Yearbook on International Arbitration, 2010, pp. 92,97; A.M. Kubalczyk, Evidentiary Rules in International Arbitration – A Comparative Analysis of Approaches and the Need for Regulation (2015), GJIL Vol 3(1), pp. 86-87; M. Barkett & J. Paulsson, The Myth of Clash of Cultures in International Arbitration, (2009) 5 FIU L. Rev. 1; B.M. Cremades, Powers of the Arbitrators to Decide on the Admissibility of Evidence and to Organize the Production of Evidence (1999), 10(1) ICC Bull. 49.
3 A.M. Kubalczyk, Evidentiary Rules in International Arbitration – A Comparative Analysis of Approaches and the Need for Regulation (2015), GJIL Vol 3(1); L. M. Pair J.D, Cross-Cultural Arbitration: Do the Differences Between Cultures Still Influence International Commercial Arbitration despite Harmonization? (2002), ILSA Journal of International & Comparative Law, Vol. 9, Issue 1; C. Borris, The Reconciliation between Common Law and Civil Law Principles in the Arbitration Process, in Conflicting Cultures in Commercial Arbitration (1999), Stefan Frommel & Barry Rider, eds, Kluwer Law International), pp. 1 4; C. Morel De Westgrave & S.Krier, How Legal Traditions (Still) Matter?, Kluwer Arbitration Blog, 20 March 2017.
4 J. D. Le, Loukas A. Mistelis, Chapter 21: Arbitration Procedure in International Commercial Arbitration, (2003), p. 533; R. Harbst, A Counsel's Guide to Examining and Preparing Witnesses, Differences between Common and Civil law Systems with regard to Witness Examination (2015), Kluwer Law International, pp.1-2.
5 J. D. Le, Loukas A. Mistelis, Chapter 21: Arbitration Procedure in International Commercial Arbitration (2003), p. 533; see also A.M. Kubalczyk, Evidentiary Rules in International Arbitration – A Comparative Analysis of Approaches and the Need for Regulation, GJIL Vol 3(1) (2015) pp. 88-89; L. M. Pair J.D, Cross-Cultural Arbitration: Do the Differences Between Cultures Still Influence International Commercial Arbitration despite Harmonization? (2002), ILSA Journal of International & Comparative Law, Vol. 9, Issue 1, pp. 60-62.
6 A. Oliver Bolthausen; P.H. Acker, Obtaining Discovery in International Arbitration Proceedings: The European v. American Mentality (2008), Sweet & Maxwell Limited, pp. 225, 227-229.
7 R. Harbst, A Counsel's Guide to Examining and Preparing Witnesses, Chapter 2: Differences between Common and Civil law Systems with regard to Witness Examination (2015), Kluwer Law International, p. 3.
8 L. M. Pair J.D, Cross-Cultural Arbitration: Do the Differences Between Cultures Still Influence International Commercial Arbitration despite Harmonization? (2002), ILSA Journal of International & Comparative Law, Vol. 9, Issue 1, p. 63; A.M. Kubalczyk, Evidentiary Rules in International Arbitration – A Comparative Analysis of Approaches and the Need for Regulation, GJIL Vol 3(1) (2015), p. 89.
9 R.A. Oliver Bolthausen; P.H. Acker, Obtaining Discovery in International Arbitration Proceedings: The European v. American Mentality (2008), Sweet & Maxwell Limited.
10 H. Smit, Roles of the Arbitral Tribunal in Civil Law and Common Law Systems with Respect to Presentation of Evidence in Albert Jan van den Berg (ed.), Planning Efficient Arbitration Proceedings: The Law Applicable in International Arbitration, ICCA Congress Series, Volume 7 (Kluwer Law International 1996), pp.161 -163.
11 H. Smit, Roles of the Arbitral Tribunal in Civil Law and Common Law Systems with Respect to Presentation of Evidence in Albert Jan van den Berg (ed.), Planning Efficient Arbitration Proceedings: The Law Applicable in International Arbitration, ICCA Congress Series, Volume 7 (Kluwer Law International 1996), pp. 163-164.
12 William W. Park, Chapter 17: Arbitration's Protean Nature: The Value of Rules and the Risk, in Julian D. M. Lew and Loukas A. Mistelis (eds), Arbitration Insights: Twenty Years of the Annual Lecture of the School of International Arbitration, Sponsored by Freshfields Bruckhaus Deringer, International Arbitration Law Library, Volume 16 (Kluwer Law International; Kluwer Law International 2007), p. 342.
13 William W. Park, Chapter 17: Arbitration's Protean Nature: The Value of Rules and the Risk, in Julian D. M. Lew and Loukas A. Mistelis (eds.), Arbitration Insights: Twenty Years of the Annual Lecture of the School of International Arbitration, Sponsored by Freshfields Bruckhaus Deringer, International Arbitration Law Library, Volume 16 (Kluwer Law International; Kluwer Law International 2007), p. 342.
14 For more insights on the topic of costs, see the report from the webinar "Arbitrators' Discretion in Awarding Costs – Are There Any Limits?" organised by Aceris Law during the 2025 Paris Arbitration Week.
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