## Vijay K. Bhatia* & Christopher N. Candlin*

## Analysing Arbitration Laws across Legal Systems

## Abstract

In  this  paper,  the  national  Indian  and  Chinese  statutes  on  arbitration  are  compared with  the  UNCITRAL  Model  Law. After  a  presentation  of  the  GILD-MMC  project, focus is especially on textual aspects indicating attitudes towards the relation between the  administrative  powers  and  the  parties  in  commercial  arbitration.  Thus,  looking at  the  features all-inclusiveness,  information  load,  information  spread,  legislative style and transparency signifi  cant  differences  are  found  and  related  to  the  different com  municative purposes (overall model vs. specifi  c national rules), the different legal traditions (common law vs. civil law) and the different political systems (westernised market economy vs. socialist market economy).

## 1. Introduction

Recent years have seen an unprecedented dismantling of socio-cultural, disciplinary,  and  national  barriers  especially  in  the  context  of  coope  ration  and  collaboration  in  international  trade  and  business.  The creation of massive international free trade zones and the opening up of major political economies have accelerated moves towards intense competition to capture international markets on the one hand, and the merger  of  corporations  to  form  huge  multinational  conglomerates on  the  other.  The  increase  in  such  trends  towards  a  globalisation  of socio-cultural,  business  and  communication  issues  has  seen  law  fast assuming an international perspective rather than retaining its purely jurisdictional  concerns. The  creation  of  a  common  European  market has demonstrated, for example, the need for a common European legal

* Vijay K. Bhatia City University of Hong Kong

* Christopher N. Candlin Macquarie University, Australia/Open University, UK

13

framework as an important priority. This task was much more complex than that of creating a new legislative framework, because this common framework was meant to be interpreted within the contexts of a diversity of individual legal systems and languages of the member countries of Western Europe which have their own strong linguistic, socio-political, cultural and legal identities.

More  recently,  in  the  context  of  the  return  of  Hong  Kong  to  the People's Republic of China, and the creation of Hong Kong as a Special Administrative Region of the People's  Republic of China, (HKSAR), under the 'One Country Two Systems' principle, the importance of interpreting one set of laws in the context of the other system has rais  ed a  number  of  interesting  issues.  In  the  changed  context  there,  three lan  guages and two legal systems are interacting with each other, highlighting a number of new problems in the interpretation of rules and regulations  and  in  the  translation  of  legal  intentions,  not  only  from one language to another, but also from one legal system to the other (Candlin  and  Bhatia  1998).  In  a  span  of  about  six  years,  we  have wit  nessed several cases where sections of the Basic Law, which was enacted by the National People's Congress, Peoples Republic of China, as a mini constitution for Hong Kong Special Administrative Region (HKSAR), have been construed and interpreted rather differently, often taking contradictory positions by the parties concerned. The underlying issues in relation to statutory interpretation in many of these cases could either be traced back to the infl  uence of two different drafting systems, which may include differences in the languages in use (Chinese and English), between legal systems, or in relation to other socio-cultural as well as political factors (Ghai 1997).

In legal linguistics, however, there has been very little attention paid to issues that cut across languages, legal systems, or which accommodate such socio-cultural and political differences. In contexts like these, one is  often  confronted  with  a  variety  of  questions,  some  of  which  may include,

- To what extent and by what linguistic means is it necessary for a country to specify the scope of legislative construction and interpretation?

- To what extent will the scope be constrained by the legal system in which it is constructed and interpreted?
- To what extent will established socio-cultural conventions and political ideologies have any signifi  cant infl  uence on the construction and interpretation of the laws in question?
- To  what  extent  will  the  instruments  of  legislation  be  constrained by the linguistic resources available in the language in which it is written?

Issues like these are crucial for the construction, interpretation, and use of  legislative  discourse  across  languages,  language  varieties,  sociopolitical,  cultural  and  economic  boundaries  and,  most  of  all,  across different  legal  systems.  They  are  also  extremely  relevant  when  one translates  legal  expressions  from  one  language  or  legal  system  into another. Although there has been some work reported in some of the areas  identifi  ed  here  (Engberg  1997;  Fredrickson  1995;  Lang  1989; Roebuck, Wang, and Srivastava 1995; Trosborg 1991, 1997), specifi  c issues raised have largely remained under-investigated. In this paper, we would like to present some of the fi  ndings based on an international effort to address these issues in legal linguistics concerning the use of legal language across legal systems, cultures and other socio-political factors.  The  overall  objective  is  to  investigate  the  'generic  integrity' (Bhatia 1993, 1994, 2000, and forthcoming) of legislative documents as they are constructed, interpreted and used in multilingual and multicultural legal contexts, primarily incorporating the following stages.

- Linguistic analyses of a corpora of International  Arbitration Laws from several countries, addressing such issues as degree of quali  fi  cation, specifi  cation of scope, issues of closed versus open-endedness, and other matters concerned with complex contingency, and their comparison with The UNCITRAL Model Law, 1985 (UNML).
- Grounded account of the drafting and interpretative practices within specifi  c contexts, which attempts to further explore the issues arising from analyses under (1) by focusing on a set of critical and relevant sites of engagement, incorporating specifi  c moments of application

of the laws under investigation, especially where certain aspects of these two laws are invoked during the negotiation of justice.

- Explanation of issues identifi  ed and discussed under 1 and 2 above, by reference to socio-cultural, economic, political, linguistic and legal factors based on the background studies of the legal systems of these two countries, and also on the expert reactions and commentaries by legal specialists, both from the academy and the legal practice.

This project 1 , entitled 'Generic integrity in legal discourse in multilingual and multicultural contexts', has more than ten international teams participating in the analysis of international arbitration laws from the perspective of a number of different countries, languages, legal systems, cultures  and  socio-political  ideologies.  The  research  has  a  threefold orientation: a contribution to basic knowledge of legal lan  guage seen from  an  international  perspective,  an  underpinning  for  international policy and commercial practice, and grounding for legal practice and legal practitioner training. We hope that such a contrastive/comparative multilingual typology of key instances and key textualisations, supported by explanatory commentary, will serve as a very valuable aid to the translator, to the legislator and the lawyer, and, ultimately, to the parties entering into contracts of such a sort.

In this paper we take some sections of International Arbitration Laws from  two  different  contexts  to  illustrate  some  of  the  important  and in  teresting issues which seem to be crucial in the construction, interpretation  and  application  of  such  laws  in  international  contexts. The texts come from The Arbitration Law of the People's Republic of China 1994 (PRCAL) and The Arbitration and Conciliation Ordinance (1996) of India (ACOI). We focus on these two rather diverse contexts, i.e., the Republic of India (India) and the People's Republic of China (PRC) because these two countries represent two very different socio-political traditions, legal systems, and constitutional mechanisms. They also use two very different languages, though they share to varying degrees the use  of  English  as  a  second  language  in  legal  contexts.  In  particular, we  address  issues  of  degree  of  qualifi  cation,  specifi  cation  of  scope, trans  parency  and  open-endedness,  and  other  matters  concerned  with complex  contingency,  and  make  comparisons  with The  UNCITRAL Model Law, 1985 (UNML). However, due to the limitations of space, we illustrate  only  the  fi  rst  of  the  three  procedures  mentioned  above. (The other procedures are illustrated in several other publications listed on the project website.)

1 http://gild.mmc.cityu.edu.hk/

## 2. General observations

The  UNCITRAL Model Law (UNML) serves as a blueprint for the PRCAL and ACOI.  It  is  interesting  to  note  that  the  UNML  has  no specifi  c  section dealing with the enforcement of foreign awards. The UNML  is  presumed  by  its  nature  and  origin  to  be  for  the  general guidance of all countries, and hence does not have to specifi  cally deal with  the  enforcement  of  foreign  awards.  Each  country  will  need  a special provision which can best protect its interest when entering into a business relationship with parties from other counties. Here one can safely say that the UNML is more general in terms of its applicability and coverage. It serves as a general guide for other countries to follow, whereas  the  PRCAL  and  the  ACOI  are  more  specifi  c  and  detailed adaptations of the Model Law, keeping in mind local constraints.

Further observations in terms of specifi  cities indicate that PRCAL has a section on the Arbitration Commission and Arbitration Association, whereas  Part  I  of  the  ACOI  has  two  additional  chapters,  one  on 'Appeals' (Chapter IX), the other called 'Miscellaneous' (Chapter X).

Similarly,  the  ACOI  appears  much  more  detailed  than  either  the UNML or the  PRCAL.  It  contains  Part  II,  III  and  IV ,  dealing  with domestic matters, which surprisingly have no mention in the PRCAL. Furthermore, ACOI adopts a number of defi  nitions from UNML but, at the same time, adds a number of others not mentioned in UNML. In the same way, ACOI covers conciliation, whereas neither the UNML nor the PRCAL incorporates this aspect.

Although  in  general  terms  the ACOI  seems  to  have  been  drafted more closely in keeping with UNML in its fi  rst eight chapters, especially in terms of the chapter titles and the drafting of articles in similar wordings, the ACOI, and to some extent PRCAL, seem also to be more specifi  c and more precise than UNML in a number of ways. The ACOI

and the PRCAL both have a section on 'Supplementary Articles' (which is  not  included  in  the  ML). The ACOI has a section (Part II) on the enforcement of certain foreign awards. The PRCAL also has a section to  deal  with  foreign  concerns  (Chapter  VII).    For  a  more  detailed comparison in terms of the substance of these versions, please refer to Appendix 1.

To sum up, it is clear that the UNML provides a broad framework, but  includes  also  a  good  deal  of  detailed  defi  nition  of  key  terms.  It sets out the means by which individual states may construct their own arbitration  law  in  the  light  of  local  circumstances  but  makes  it  clear that arbitration is bound by its own semantics - a point which UNML clearly  states.  Interestingly,  it  sees  as  necessary  to  defi  ne  core  terms like  'commercial',  defi  nitions  that  are  absent  in  both  PRCAL  and ACOI. It defi  nes the legal authority and the precise means by which written communications, for example, are to be sent and received. It sets arbitration within the general scope of law in the states in question and presumes that arbitration law will be harmonised with those local laws.  It  supposes  that  there  will  be  local  constraints  governing  the application  of  any  conditions.  It  may  thus  be  of  interest  to  examine why UNML provides considerable detail on some matters and not on others. For example, arbitration is not explicitly linked to conciliation . It emphasises international arbitration explicitly.

It is equally clear that PRCAL differs considerably from UNML in not specifying details. It sets its principles against particular economic conditions  ( socialist  market  economy )  and  offers  only  broad  brush statements of principle or scope which invite further defi  nition - see phrases like economic matters ,  or administrative disputes,  administrative organs . There is little attempt at defi  nition of terms here and certainly not as regards usual legal qualifi  cations, as in UNML (and in ACOI). The text is short and plainly written, but this masks vaguenesses. For example,  in  Article  2  we  may  ask  what  are  'other  organizations'? Article 4 is of interest in that it appears to state in plain English what it means but leaves its key issues unclear: for example, ' how do litigants choose to settle', ' how does a litigant apply for arbitration' , ' what or who is the ' arbitration commission' and what are its powers? No details  are  provided  on  methods  and  means  surrounding  arbitration processes. It is also interesting to note that PRCAL does not mention conciliation, as does the ACOI in connection with arbitration.

## 3. Specifi  c focus

Although some of the general observations and conclusions here are based on the three versions of the international  arbitration  laws  (the UNML, the PRCAL, and the ACOI), for the purpose of illustration of detailed analysis, the paper will focus on the following three sections.

1. Arbitration agreement (PRCAL Articles 4 and 16, UNML Article 7, and ACOI Article 7) (see Appendix One)
2. Appointment of arbitrators (PRCAL Articles 31-33, ACOI Article 11, and UNML Article 11) (see Appendix Two) and
3. Grounds for challenge (PRCAL Article 34, UNML Article 12, and ACOI Article 12) (see Appendix Three).

We examine here some of the surface level features of these chosen sections.

## 3.1.  Surface-level features

## Word length

One of the most strikingly obvious differences in the three versions of the same law is the sheer length of the sections. PRCAL contains just 150 words, whereas UNML contains 380, and ACOI 663. It will be inter  esting to investigate the amount of information and the processes of textualisation used in the three versions.

## Sentence length

UNML consists of just one Article containing 5 sections, 2 of which have  several  subsections,  containing  a  total  of  5  sentences  with  an average number of 76 words per sentence.

PRCAL spreads out its information over 3 Articles, a total of 5 sentences with an average length of 30 words per sentence.

In the case of the ACOI, we fi  nd a single article with 12 sections, 3 of which contain several subsections, consisting of a total of 13 sentences, with an average length of 51 words per sentence.

We  are  working  here  on  the  English  versions  of  the  three  texts, and although we assume that the number of words in local language ver  sions (Putonghua, in the case of PRCAL, and Hindi, in the case of ACOI) may be different, the scope and details of specifi  cation may not be very different.

## 3.2.  Lexico-grammatical features

## Binomials and multinomials

One of the most typical lexico-grammatical devices used in legislative writing is the use of binomials or multinomials (see Bhatia 1982). The samples in question present an interesting set of fi  gures.

In the PRCAL version, we fi  nd 3 instances of binomials in a total of 4 sentences, offering a sum total of 7 different options or entry points for application. In the case of ACOI from India, on the other hand, we fi  nd 16 instances of the use of binomials, many of them multinomials, in a few cases, one embedded within the other, offering a total of 75 options  or  entry  points  for  application.  UNML  stands  somewhere  in between the two versions, incorporating 10 instances of binomials and multinomials, with a total number of 31 options or entry points.  The use of binomials and multinomials contributes quite signifi  cantly to the all-inclusive property of the text in question, with the complexity of the options being made transparent to the reader. We illustrate below Article 11 (4) from the ACOI.

<!-- image -->

The following example provides another display of this sub-sec  tion of the article so as to have clearer display of binomials and multinomials.

<!-- image -->

A slightly more complicated example is offered by Article 11(6) of the ACOI, which we reproduce below:

```
Article 11(6) Where, under an appointment procedure agreed upon by the parties, a party fails to act as required under that procedure; or the  parties,  or  the  two  appointed  arbitrators,  fail  to  reach  an agreement expected of them under that procedure; or a  person,  including  an  institution,  fails  to  perform  any  function entrusted to him or it under that procedure, a  party  may  request  the  Chief  Justice,  or  any  person  or  institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
```

And, (now) a more complex display of the same text:

<!-- image -->

This powerful linguistic resource of multinomials has two functions. First  ly, it works to make the provision specifi  c in that it outlines the various possibilities that are available for interpretation, thus adding to the all-inclusiveness of the legislative provision, and secondly, it con  tributes to the precision and clarity of the expression. Compare this with Article 32 of the PRCAL on the same provision, which we quote below:

## Article 32

In the event the litigants fail to reach an agreement on the form of an arbitration tribunal, or fail to select their arbitrators within the period prescribed in the arbitration rules, the arbitration commission director shall make the decision for them.

If we display binomials exactly the way we did in the earlier example, we see:

<!-- image -->

In  terms  of  simplicity  of  lexico-grammatical  resources,  Article  32 from PRACAL is written in simple and plain English with very little complexity of contingencies, as compared with Article 11 (6) discussed earlier.  However, in terms of precision and specifi  city of information included, Article 32 is extremely vague and general, assigning unlimited powers to just one person, namely the arbitration commission direc  tor,  leaving  no  option  for  any  other  application.  Similarly,  as  far as the specifi  cation of legal scope as to who can do what under what circumstances is concerned, Article 32 is extremely vague whereas 11 (6) is relatively precise and transparent.

## 3.3.  Rhetorical and discoursal features

## Qualifi  cations

Qualifi  cations in legislative provision play an important role in making the application of the rule of law precise and specifi  c to a particular context.  No  rule  of  law  is  of  universal  application  and  every  rule  is ap  plic  able to a specifi  c set of cases under specifi  c conditions. All rules of  law  are  therefore  often  preceded  by  what  is  in  legal  terminology called  the  CASE,  which  outlines  the  circumstances  under  which  a rule of law is invoked. Such case descriptions are part of preparatory conditions which make a particular rule of law operative. There can also be additional conditions which are often applicable to the operative parts of the provisions. These often specify how and in what manner the rule is applied.  We compare here the two sections already discussed in the context of binomials and multinomials, so as to analyse the level of  qualifi  cational  specifi  cation  in  the  two  versions,  the  one  from  the PRCAL and the other from the ACOI. We begin with the PRCAL.

## Article 32

In the event the litigants fail to reach an agreement on the form of an arbitration tribunal, or  fail to select their arbitrators within the period prescribed  in  the  arbitration  rules , the  arbitration  commission director shall make the decision for them .

This provision in this section (indicated in bold) applies to the set of case descriptions prefaced in italics. Beyond these case descriptions, there seems to be no other constraints on the use of the powers vested in the arbitration commission director. The other important feature of this provision is the legally mandatory nature of the rule indicated by the use of legal SHALL. Compare this with a similar provision from ACOI.

## Article 11(6)

Where, under an appointment procedure agreed upon by the parties, -

- a party fails to act as required under that procedure; or
- the  parties,  or  the  two  appointed  arbitrators,  fail  to  reach  an agreement expected of them under that procedure; or
- a  person,  including  an  institution,  fails  to  perform  any  function entrusted to him or it under that procedure,

a  party  may  request  the  Chief  Justice,  or  any  person  or  institution designated by him to take the necessary measure,

unless  the  agreement  on  the  appointment  procedure  provides  other means for securing the appointment.

In  this  case,  although  the  power  to  take  further  action  rests  with  the Chief Justice, or any person or institution designated by him, the power does not become mandatory unless a party requests the Chief Justice, and the parties can do so only on the fulfi  lment of certain preconditions and procedures. Besides, it is not mandatory on the part of the parties to request such necessary action. These options are clearly textualised by the insertion of a set of preparatory qualifi  cations (indicated in italics) and a reference to the exception clause, which may again deprive the Chief Justice of his exercise of the power given to him. So in the case of  PRCAL, there is a single  open-ended  case  description  which  can bring into legal action a series of mandatory legal powers whereas, in the case of ACOI, there are a series of precise case descriptions which may give the parties a right to request the Chief Justice or other person or institution designated by him to take the necessary further action, all of which is further constrained by an exception clause, which may prohibit such an action. The use of may in this version, as against shall in the previous version, is signifi  cant.

## 3.4.  Socio-cognitive features

## All-inclusiveness and transparency

ACOI follows very closely the UNML to the extent of sharing the same textualisations for certain articles and clauses. They frequently share the same defi  nitions of terms, but not always so and where this occurs, this is signifi  cant. As envisaged by the UNML, this differentiation localises the conditions and scope to its own legal system and framework, (note particularly Article 2 (e)). It would be useful to see whether there are any discrepancies between UNML general defi  nitions and ACOI local ones. The latter set arbitration in terms of provisions of their own legal system and as such explicitly link arbitration and conciliation .

ACOI gives many of the executive powers to the Chief Justice of India,  whereas  PRCAL  vests  all  the  related  powers  in  the  Director of  the  Arbitration  Commission.  Does  this  signal  anything  about  the relationships between the judiciary and the executive? The degree of transparency will depend on who controls the person given the power. In the context of India, the constitution clearly separates the judiciary and the executive, and the move to give power to the judiciary will clearly take the arbitration process away from the infl  uence of the executive and  hence  tend  to  keep  it  free  from  government  control.  This,  in  a very signifi  cant way, also adds to the transparency and independence of law. In the case of the PRCAL, on the other hand, much depends on what authority controls the appointment of the arbitration commission, especially the director of the commission.

The second and perhaps the more signifi  cant aspect of textualisation in the data is the amount of information made available to the reader and the amount of information left to the discretion of  the  one  who is  given  executive powers. In the case of PRCAL there is very little specifi  cation  of  information  either  on  the  nationality  of  potential arbitrators,  the  process  of  appointment of arbitrators, or on any time limits within which the appointment of arbitrators must be completed. ACOI, on the other hand, specifi  es all these aspects in quite some de  tail (on all these aspects) and goes even further in detailing the nature of authority and ownership much more precisely than does UNML or, of course, PRCAL. ACOI follows UNML in defi  ning means and pro  cesses, especially  the  sending  and  receiving  of  documents,  and  spells  these out very clearly. Overall, ACOI differs from PRCAL in emphasising clearly rights of appeal to law. ACOI is similar to PRCAL in vesting author  ity in the arbitration commission/tribunal, although with  in differing interpretations of the sitting of such tribunals in terms of the legal system.

However, ACOI  does  not  defi  ne  ' commercial '  (although  UNML does). One has the impression that  ACOI adopts defi  nitions from UNML without always signalling this (and does not always provide its own), something which is quite common in this fi  eld. It is also interesting to note how ACOI very specifi  cally identifi  es what is meant by 'parties' to any agreement (in contrast to PRCAL which says nothing explicit about this).

## 4. Information loading and textual-mapping

We  notice  two  very  distinct  tendencies  in  the  three  versions  of  the arbitration data, one leaning towards minimal informational load and the other towards specifi  cation of detailed information. These ten  dencies we have to some extent covered in the section above on all-inclusiveness and transparency. Here we explore in what way this information, either detailed or general, is textualised. This may in turn throw some light on the degree of reader accessibility the text aims to achieve.

In the case of PRCAL legislation, it is clear that although there is a very light information load in most of the sections, this raises few problems for reader accessibility. The text is written in a simple code which comes very close to plain language legislation. In the case of UNML, the information included is reasonably well detailed, because it was meant to be used as a model by member nations of the UN body. However, if one were to look at the linguistic resources used for such textualisations, we fi  nd that it is written more in the traditional legislative style, con  tribut  ing  to  making  several  sections  relatively  less  reader  accessible. ACOI, on the other hand, is distinctly more infor  mative than the other two versions, and at the same time rich in the use of lexico-grammatical resources that contribute to making it more transparent to the reader, and hence more accessible. In this respect, both the PRCAL and the ACOI are relatively more reader access  ible, with the former achieving this by underplaying the role of detailed specifi  cation of information, and the latter by an extensive use of textual-mapping devices (Bhatia 1987). In the case of UNML, however, although there is a reasonable de  gree  of  detailed  information,  it  is  relatively  less  reader  accessible because of the condensed form of infor  mation display. It contains an average of 76 words per sentence as compared with 51 in the ACOI.

## 5. Comparison of specifi  c sections

## 5.1.  Arbitration agreement

UNML provides for an explicit statement of what constitutes an arbitration agreement. The emphasis on a written agreement (in a variety of equivalent modes) as a record ,  and the equivalence of a reference to an agreement is interesting. One may also note that ACOI offers some possibility of non-referral to arbitration if local circumstances motivate any alternative possibility or outcome. Perhaps arbitration practitioners will be in a better position to suggest the degree of specifi  city required in arbitration practice.

PRCAL follows UNML in stipulating a written agreement and the nature of the contents of an arbitration agreement. As suggested earlier, PRCAL is terse and to the point. Here it seems that its statements have the same intent as UNML but do not spell out any detailed modes of presentation . The impression is that PRCAL covers the UNML ground, but much more succinctly and therefore, arguably, less precisely. It is interesting to note that PRCAL seems to be largely oriented to disputes which are presumed to have occurred and not necessarily to those which may occur in future. Interestingly, PRCAL is quite comprehensive in relation to arbitration claims (Articles 5-9) but nonetheless is vague as in declaring what would constitute invalidity of an agreement. Important here is the emphasis on freedom from interference, where PRCAL is much more explicit than either UNML or ACOI. The right to appeal to the Arbitration Commission or the People's Court is enshrined, though no details are indicated about either the method or the body to which one could apply.

ACOI essentially follows UNML, with the use of much clearer and more  precise  textual-mapping  devices  (see  Bhatia  1987)  used  for  a better display or layout, but with much the same wording. One notices the consistent use of may and shall in UNML/ACOI (and occasionally in PRCAL) with some variation in the use of if (ACOI) and providing that (UNML). ACOI is very full on the circumstances under which parties can apply to the court. ACOI is once again very explicit on methods and procedures, in contrast to PRCAL and to UNML (but for different reasons in that UNML leaves explicit procedures (except in the case of conditions on written agreements) to local interpretation and PRCAL because  procedures  and  methods  are  not  characteristically  referred to.  Hence  PRCAL  and  ACOI  display  very  interesting  contrastive interpretations  of  UNML,  suiting  their  distinctive  jurisdictions/legal systems.

## 5.2.  Arbitration procedures

There  are  signifi  cant  differences  among  PRCAL,  UNML  and ACOI in  regards  to  these  procedures.  It  would  be  worthwhile  mapping  the different  procedures  suggested  and  also  the  interestingly  distinctive grounds offered for challenge. The legal usage in such specifi  cations of  appointment are also of note. We may say that ACOI is the most legal in  its  discourse,  UNML  similarly,  and  that  PRCAL  is  robustly formulated in plain English (in its English translation anyway!). Also of signifi  cance are the areas of challenges to arbitrators and the relative authority of the arbitration 'tribunal' and the court.

UNML takes an explicitly international line in terms of who may be  an  arbitrator  and  specifi  es  procedures  very  closely.  The  grounds for  challenge  of  an  arbitrator  rely  on  disclosure  of  interest,  lack  of qualifi  cations, and doubts about impartiality. The UNML provisions are closely emulated by ACOI, but as usual set out in a more convenient and reader-friendly clause-by-clause format. Once again, UNML (and ACOI)  introduce  time  constraints  on  the  legitimacy  of  challenges, while PRCAL only specifi  es that any withdrawal must occur within the proceedings of the court dealing with the case.

PRCAL, UNML and ACOI are specifi  c about the number of arbitrators, with PRCAL indicating three, with the possibility of one, while UNML and ACOI leave the number open, but also allow explicitly for a sole arbitrator. PRCAL does not envisage overseas arbitrators and is therefore more national than either UNML or ACOI. PRCAL is interestingly  much  more  specifi  c  and  culturally  relative  about  grounds  for challenges than either UNML or ACOI, indicating bribery, invitations to  dine,  relatedness  and  the  holding  of  private  meetings  as  grounds for challenge, while being also more encompassing as in the need to declare 'vital interests'. Interestingly, ACOI avoids such specifi  cation. While UNML and ACOI explicitly indicate that any withdrawal by an arbitrator  on  challenge  does  not  imply  acceptance  of  the  challenge, PRCAL is silent on this matter. There is a notable difference between PRCAL,  UNML  and  ACOI  in  relation  to  the  halting  and  starting afresh of an arbitration process if an arbitrator withdraws for whatever reason. PRCAL states that in such a case you begin again, while ACOI explicitly,  and  ML  implicitly,  indicate  that  the  process  simply  takes up where it had been left off. It is interesting to note Articles 17-20 of PRCAL where PRCAL is much more explicit and full than either UNML or ACOI relating to the invalidity of agreements.

ACOI is very full indeed on the matter of appointment of arbitrators, following closely here UNML, while PRCAL, as usual, leaves matters undetermined as in whether or not an arbitrator can be from overseas, but  is  more  specifi  c  on  matters  of  time  periods. ACOI  identifi  es  the Chief  Justice  (or  nominee)  as  the  authority  on  fi  nal  appointment  of arbitrators,  including  where  necessary  arbitrators  from  outside  India, whereas UNML specifi  es only 'the court' and PRCAL specifi  es the arbitration commission director, who may or may not be part of the court authority. The role of the Chief Justice in ACOI is spelled out in considerable detail. Both ACOI and UNML distribute the procedures for  challenge  among  the  parties  to  the  dispute  and  the  tribunal  in roughly  the  same  way,  and  PRCAL  speaks,  like  them,  of  collective decisions among parties and the arbitration commission director.

A close analysis of the differences between UNML and ACOI indicates that while these are similar, they are interestingly not identical especially in their provisions and in their general manner of expression. ACOI  is  much  more  replete  with  stated  'meanings'  of  terms  and clauses and includes internal cross-referencing among clauses.

## 5.3.  Grounds for challenge

Professional  discourses,  particularly  legislative  genres,  are  relatively less  likely  to  display  very  strong  cross-cultural  variations;  however, socio-cultural or political constraints often play an interesting role in their construction and interpretation. The data in question incorporate an interesting example of such a tendency. Taking up the sections on Grounds for challenge from these two sets of laws, we note:

## ML Article 12 - Grounds for challenge

When  a  person  is  approached  in  connection  with  his  possible appointment  as  an  arbitrator,  he  shall  disclose  any  circumstances likely  to  give  rise  to  justifi  able  doubts  as  to  his  impartiality  or independence. An  arbitrator,  from  the  time  of  his  appointment  and throughout  the  arbitral  proceedings,  shall  without  delay  disclose any such circumstances to the parties unless they have already been informed of them by him.

An arbitrator may be challenged only if circumstances exist that give rise to justifi  able doubts as to his impartiality or independence, or if he does not possess qualifi  cations agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.

## PRCAL

Article 34. An arbitrator shall withdraw from serving in the tribunal when his case is one of the following, and the litigants also have the right to present a withdrawal request:

(1) where he is one of the litigants in the arbitration, or he is a close relative of any one litigant, or a relative of the attorney;

(2) where he has a vital interest in the arbitration;

(3)  where  he  is  related  to  the  litigants,  or  their  attorneys,  in  other respects  in  the  case  and  the  relationship  may  affect  an  impartial arbitration; or

(4) where he has had private meetings with the litigants or with their attorneys, or when he has accepted the invitation of the litigants or their attorneys, to dine, or accepted their gifts.

## ACOI Article 12 - Grounds for Challenge

(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances likely  to  give  rise  to  justifi  able  doubts  as  to  his  independence  or impartiality.

(2) An arbitrator,  from  the  time  of  his  appointment  and  throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub-section (1) unless they have already been informed of them by him.

(3) An arbitrator may be challenged only if circumstances exist that give rise to justifi  able doubts as to his independence or impartiality, or he does not possess the qualifi  cations agreed to by the parties.

(4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.

In these sections, the ACOI follows rather closely the section from the UNML; the two are very close to each other in terms of the nature and amount of information included, though the ACOI uses an extensive range of textual-mapping devices, contributing to making the provision more  reader  accessible.  The  PRCAL,  on  the  other  hand,  is  a  good deal  more  detailed  in  terms  of  information  content,  and  also  in  the use  of  textual-mapping  devices.  The  most  interesting  aspect  of  the information  content  remains  the  specifi  city  of  information  included, perhaps due to differences in socio-cultural expectations and practices, which constrains social behaviour in local contexts. Both the UNML and  the  ACOI  specify  grounds  for  challenging  the  appointment  of arbitrators in more general terms, such as the circumstances giving rise to  'justifi  able  doubts  as  to  his  independence  or  impartiality'  or  nonpossession of 'qualifi  cations agreed to by the parties', assigning burden of disclosing any circumstances to the potential arbitrator. In both these versions, the constraints are not specifi  ed any further. However, as we note briefl  y  above, the PRCAL section specifi  cally lists a number of constraints, some of which include a close relationship with any 'one litigant' or 'the attorney', 'private meetings with the litigants or with their  attorneys',  or  acceptance  of  'invitation  of  the  litigants  or  their attorneys, to dine', or acceptance of 'gifts'. It is hard to say to what extent  such  a  detailed  specifi  cation  of  circumstances  is  prompted  by socio-cultural factors specifi  c to the PRC, a point that may need further examination and evidence.

To summarize, we may say that we have treated the UNML as provid  ing a broad framework that individual states have used to construct their  own  arbitration  law  in  the  context  of  local  circumstances, which  emphasizes  that  arbitration  in  local  contexts  is  bound  by  its own  semantics.  We  have  considered  the  UNML  text  as  generically struc  tured  into  a  number  of  sub-generic  sections  which  correspond rough  ly to the Chapters; for instance, General Provisions, Arbitration Agreement,  Composition  of Arbitral  Tribunal  each  of  which  has  its own constituent moves in the form of the Articles and their clauses. From this we may readily see how the UNML differs from the PRCAL in particular, and how the ACOI more closely mirrors the UNML. It is also possible to consider the whole of arbitration law more in terms of Levinson's episodes (Levinson 1976), that is, in terms of the Chapters and Articles. One may also analyse the whole in terms of objectives and strategies, that is 'what does the document intend to achieve, and how does it achieve it'? (Sarangi 2000). Whichever way one may analyse this, it should be possible to show that the differences between PRCAL, UNML  and  ACOI  are  differentially  motivated,  i.e.  that  PRCAL differs from UNML not only in terms of specifi  city but also in terms of  underlying  legal  systems  and  procedures,  and  especially  indicate what information is deemed relevant to include as a preamble or as a backdrop to the Articles.

## 6. Conclusions

We outline the following conclusions from our analyses drawing on a small corpus of three sections of international arbitration laws drawn from  India  (ACOI)  and  the  PRC  (PRACAL)  on  the  one  hand,  and the  United  Nations  Model  Law  (UNML)  on  the  other.  They  can  be summarized as follows.

| Textualisation Feature   | Degree of significance in the data   | Degree of significance in the data   | Degree of significance in the data   |
|--------------------------|--------------------------------------|--------------------------------------|--------------------------------------|
|                          | PRCAL                                | UNML                                 | ACOI                                 |
| All-inclusiveness        | low                                  | high                                 | high                                 |
| Information load         | light                                | heavy                                | heavy                                |
| Information spread       | light                                | condensed                            | textually mapped                     |
| Legislative style        | simplified                           | traditional                          | easified                             |
| Transparency             | low                                  | high                                 | very high                            |

Although law has traditionally been considered jurisdictional in na  ture, we note that it is increasingly being constructed, interpreted, used and exploited in settings across jurisdictional boundaries. The perception that  legislative  discourse  is  impersonal  and  highly  formal,  and  that differences in linguistic, socio-political, economic and cultur  al factors across  national  and  ideological  boundaries  will  have  no  signifi  cant infl  uence in its construction and interpretation we regard from our analysis as no longer being entirely valid. With the increasing dismantling of international trade barriers, laws are often being written and interpreted across geographical and socio-political borders in dif  ferent ways such that general assumptions about meanings cannot be taken for granted in these contexts when one crosses such boundaries.

In the light of this latter assertion, we have here made a preliminary attempt to investigate the nature and function of alternative textua  li  sations in legislative discourse across national boundaries, focusing on the extent to which such textualisations are motivated by differences in legal systems, languages used, socio-political or cultural perceptions of the communities in question. We have also paid some attention to the way such instances of alternative versions of laws are interpreted across  national  boundaries,  and  the  nature  of  the  implications  such variations in the construction and interpretations of laws might have for the empowerment of socio-political institutions. However, we have not been able to do more than to simply highlight some of the issues involved in legal drafting and its interpretation and translation.

## References

- Bhatia, Vijay K. 1982: An Investigation into Formal and Functional Characteristics of Qualifi  cations in Legislative Writing and its Application to English for Academic Legal Purposes. Ph.D. thesis, University of Aston in Birmingham.
- Bhatia,  Vijay  K.  1987:  Textual-Mapping  in  British  Legislative  Writing.  In World Englishes , 6 (1), 1-10.
- Bhatia,  Vijay  K.  1993: Analysing  Genre:  Language  Use  in  Professional  Settings . London: Longman.
- Bhatia, Vijay K. 1994: Generic Integrity in Professional Discourse. In Gunnarsson, BL., Linell, P., Nordberg, B. (eds.), Text and Talk in Professional Contexts . (ASLA: s skriftserie 6) Uppsala: ASLA, 61-76.
- Bhatia, Vijay K. 2000: Genres in Confl  ict. In Trosborg,  Anna (ed), Analysing Professional Genres. Amsterdam: Benjamins, 147-162.
- Bhatia, Vijay K. 2004: Worlds of Written Discourse: A Genre-Based View .  London: Continuum (forthcoming).
- Candlin,  Christopher  N.,  Bhatia,  Vijay  K.  1998: Strategies  and  Competencies  in Legal  Communication: A  Study  to  investigate  the  communicative  needs  of  legal professionals. Project Report. The Law Society of Hong Kong.
- Engberg, Jan, 1997: Konventionen in Fachtextsorten. Kontrastive Analysen zu deutschen und dänischen Gerichtsurteilen . (= Forum für Fachsprachenforschung, 36). Tübingen: Narr. [Conventions in LSP Genres. Contrastive Analyses on German and Danish Legal Judgements]
- Fredrickson, Kirstin M. 1995: American and Swedish written legal discourse: The case of court documents. (a) Ph.D. dissertation, University of Michigan.
- Ghai, Yash 1997: Hong Kong's New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law. Hong Kong: Hong Kong University Press.
- Government of Hong Kong 1984: Sino-British Joint Declaration 1984.
- Government of Hong Kong 1990: The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China.
- Levinson, S. C. 1979: Activity-types and language. In Linguistics , 17 (5-6), 365-399.
- Roebuck, D., Wang, Guiguo, Srivastava, D. K. 1995: Digest of Hong Kong Contract Law. Hong  Kong:  Centre  for  Chinese  and  Comparative  Law,  City  University  of Hong Kong.
- Sarangi, Srikant 2000: Activity type, discourse types and interactional hybridity: The case of genetic counselling. In Sarangi, Srikant, Coulthard, Malcolm (eds.), Discourse and Social Life. London: Pearson, 1-27.
- Trosborg, Anna 1991: An analysis of legal speech acts in English contract law. In Hermes 6, 65-90.
- Trosborg, Anna 1997: Rhetorical Strategies in Legal Language: Discourse Analysis of Statutes and Contracts . Tübingen: Narr.

## UNML

## Article 7 - Defi  nition and form of arbitration agreement (166 words: 5 Sentences)

Arbitration agreement  is an agreement by the parties to submit to arbitration all or certain  disputes  which  have  arisen  or  which  may  arise  between  them  in  respect  of a  defi  ned  legal  relationship,  whether  contractual  or  not.  An  arbitration  agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

The arbitration agreement shall be in writing. An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agree  ment, or in an exchange of statements of claim and defence in which the existence of an agreement is  alleged  by  one  party  and  not  denied  by  another. The  reference  in  a  contract  to  a document containing an arbitration clause constitutes an arbitration agree  ment provided that the contract is in writing and the reference is such as to make that clause part of the contract.

## PRCAL

## Article 4 (Reaching of arbitration agreement) (96 words: 4 sentences)

Where the litigants choose to settle their dispute through arbitration, they should reach an arbitration agreement of their own accord. When, in the absence of an arbitration agreement, a litigant applies for arbitration, the arbitration commission shall not accept it.

## Article 16  (Arbitration Agreement)

An arbitration agreement refers to an arbitration clause provided in the contract or other written agreements requesting arbitration concluded prior or subsequent to the occurrence of disputes.

An arbitration agreement shall have the following contents:

- (1)  an expressed intent to request arbitration;
- (2)  items for arbitration; and
- (3)  the chosen arbitration commission.

## Appendix One

## ACOI

## Article 7  (Arbitration Agreement) (176 words: 5 sentences)

- (1)  In this Part, 'arbitration agreement' means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defi  ned legal relationship, whether contractual or not.
- (2)  An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
- (3)  An arbitration agreement shall be in writing.
- (4)  An arbitration agreement is in writing if it is contained in
5. (a) a document signed by the parties;
6. (b) an exchange of letters, telex, telegrams, or other means of telecommunication which provides a record of the agreement; or
7. (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.
- (5)  The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.

## Appendix Two

## UNML Article 11  (Appointment of arbitrators)

## (373 words: 5 sentences)

- (1)  No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties.
- (2)  The parties are free to agree on a procedure of appointing the arbitrator or arbi  trators, subject to the provisions of paragraphs (4) and (5) of this article.
- (3)  Failing such agreement,

in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within thirty days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within thirty days of their appoint  ment, the appointment shall be made, upon request of a party, by the court or other authority specifi  ed in article 6;

in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he shall be appointed, upon request of a party, by the court or other authority specifi  ed in article 6.

- (4)  Where, under an appointment procedure agreed upon by the parties,
2. (a) a party fails to act as required under such procedure, or
3. (b) the parties, or two arbitrators, are unable to reach an agreement expected of them under such procedure, or
4. (c) a third party, including an institution, fails to perform any function entrusted to it under such procedure, any party may request the court or other authority specifi  ed in article 6 to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
- (5)  A decision on a matter entrusted by paragraph (3) or (4) of this article to the court or other authority specifi  ed in article 6 shall be subject to no appeal. The court or other authority, in appointing an arbitrator, shall have due regard to any qualifi  cations required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties.

## PRCAL Article 31 (Appointment of Arbitrators) (124 words: 5 sentences)

Where the litigants agree that an arbitration tribunal be composed of three arbitrators, each of them shall elect his own arbitrator, or request the arbitration commission director to designate an arbitrator for him. The third arbitrator shall be selected by the litigants, or by the arbitration commission director at their request. The third arbitrator shall serve as the presiding arbitration offi  cer.

## PRCAL Article 32 (Direct Appointment of the Arbitrators)

In  the  event  the  litigants  fail  to  reach  an  agreement  on  the  form  of  an  arbitration tribunal, or fail to select their arbitrators within the period prescribed in the arbitration rules, the arbitration commission director shall make the decision for them.

## PRCAL Article 33 (Informing the parties for the formation of the tribunal)

After an arbitration tribunal has been formed, the arbitration commission shall notify the litigants, in writing, about the

formation of the tribunal.

## ACOI  Article 11  (Appointment of Arbitrators) (657 words: 12 sentences)

- (1)  A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.

Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.

Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators,  each  party  shall  appoint  one  arbitrator,  and  the  two  appointed  arbitrators  shall appoint the third arbitrator who shall act as the presiding arbitrator.

If the appointment procedure in sub-section (3) applies and -

- (a)  a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or
- (b)  the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment,

the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.

Failing  any  agreement  referred  to  in  sub-section  (2),  in  an  arbitration  with  a  sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.

Where, under an appointment procedure agreed upon by the parties, -

- (a)   a party fails to act as required under that procedure; or
- (b)  the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or
- (c)   a person including an institution, fails to perform any function entrusted to him or it under that procedure,

a party may request the Chief Justice, or any person or institution designated by him to  take  the  necessary  measure,  unless  the  agreement  on  the  appointment  procedure provides other means for securing the appointment.

A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice or the person or institution designated by him is fi  nal.

The  Chief  Justice  or  the  person  or  institution  designated  by  him,  in  appointing  an arbitrator, shall have due regard to -

- (a) any qualifi  cation  required  of  the  arbitrator  by  the  agreement  of  the  parties; and
- (b)   other considerations as are likely to secure the appointment of an independent and impartial arbitrator.

In the case of appointment of the sole or third arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.

The Chief Justice may make such scheme as he may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or sub-section (6) to him.

Where more than one request has been made under sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice of different High Courts or their designates, the Chief Justice or his designate to whom the request has been fi  rst made under the relevant sub-section shall alone be competent to decide on the request.

- (a) Where the matters referred to in sub-section (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to 'Chief Justice' in those sub-sections shall be construed as a reference to the 'Chief Justice of India'.

40

- (b)  Where the matters referred to in  sub-section  (4),  (5),  (6),  (7),  (8)  and  (10) arise in any other arbitration, the reference to 'Chief Justice' in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situated  and, where the High Court itself is the Court referred to in that clause, to the ChiefJustice of that High Court.

## Appendix Three

## UNML Article 12  (Grounds for challenge) (130 words: 4 sentences)

- (1)  When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifi  able doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him.
- (2)   An arbitrator may be challenged only if circumstances exist that give rise to justifi  able doubts as to his impartiality or independence, or if he does not possess qualifi  cations agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he be  comes aware after the appointment has been made.

## PRCAL  Article 34  (Grounds for challenge) (125 words: 1 sentence)

An arbitrator shall withdraw from serving in the tribunal when his case is one of the following, and the litigants also have the right to present a withdrawal request:

- (1)  where he is one of the litigants in the arbitration, or he is a close relative of any one litigant, or a relative of the attorney;
- (2)  where he has a vital interest in the arbitration;
- (3)   where he is related to the litigants, or their attorneys, in other respects in the case and the relationship may affect an impartial arbitration; or
- (4)   where  he  has  had  private  meetings  with  the  litigants  or  with  their  attorneys,  or when he has accepted the invitation of the litigants or their attorneys, to dine, or accepted their gifts.

## ACOI   Article 12  (Grounds for Challenge) (142 words: 4 sentences)

- (1)  When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances likely to give rise to justifi  able doubts as to his independence or impartiality.

## 42

- (2)  An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub-section (1) unless they have already been informed of them by him.
- (3)  An arbitrator may be challenged only if -
3. (a) circumstances exist that give rise to justifi  able doubts as to his independence or impartiality, or -
4. (b)   he does not possess the qualifi  cations agreed to by the parties.
- (4)  A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.

## Appendix Four

Average sentence length in part of the corpus containing three sections given in Appendices One, Two and Three.

| UNML   | Total number of words Total number of sentences                         | 669 14    |
|--------|-------------------------------------------------------------------------|-----------|
| PRCAL  | Total number of words Total number of sentences Average sentence length | 341 10 34 |
| ACOI   | Total number of words Total number of sentences Average sentence length | 975 21 46 |

44