2

Do legal concepts travel?

Downloaded from https://academic.oup.com/book/41922/chapter/354820823 by University of Hull user on 15 March 2024

Adam Dyrda and Tomasz Gizbert-​S tudnicki

2.1. Introduction: The ‘deixis’ of arbitration

Let us start with a few trivial observations. International commercial arbitration is a
cross-​cultural enterprise, and the parties involved usually come from different coun-
tries. Arbitrators, as a rule, are of nationalities different from those of the parties, the
venue of arbitration very frequently differs from the place of performance of contract,
the applicable law is often unrelated to the domiciles of the parties and to the venue of
arbitration, the language of arbitration is usually not the native tongue of the arbitrators,
and so on.1 This paper aims to investigate how such a cross-​cultural context (the spe-
cific ‘deixis’) of the decision-​making process may influence the interpretation of certain
basic legal concepts. We will deal only with selected problems, and our analysis will
be analytical rather than empirical. In addition, our goal is to formulate questions that
should be answered and hypotheses that should be tested, as opposed to proposing
definite solutions or explanations.
We intend to investigate the interpretation of concepts that are not specific to
any legal system but are used by all developed legal systems; in particular, we ex-
plore concepts including ‘ownership’, ‘contract’, and ‘negligence’.2 Let us call such
concepts ‘substantive multicultural concepts’ (SMCs). The fact that different
legal systems use the same term or its equivalent in another language (e.g. the
English ‘contract’, French ‘contrat’, German ‘Vertrag’) does not necessarily mean

1
  Compare the detailed analysis of the issue of the national aspects of arbitration in Joanna
Jemielniak, Legal Interpretation in International Commercial Arbitration (2014), 2–​8.
2
  We will not analyse ‘formal legal concepts’, such as ‘right’, ‘power’, and ‘immunity’. For the distinc-
tion between substantive and formal concepts, see Tomasz Gizbert-​Studnicki and Mateusz Klinowski,
‘Are Legal Concepts Embedded in Legal Norms?’ International Journal for the Semiotics of Law, 25/​4
(2012), 556.

Adam Dyrda and Tomasz Gizbert-​Studnicki, Do legal concepts travel? In: Language and Legal Interpretation in
International Law. Edited by: Anne Lise Kjær and Joanna Lam, Oxford University Press. © Oxford University Press 2022.
DOI: 10.1093/​oso/​9780190855208.003.0003
 Do l egal conce pt s t ravel ? 51

that such a term expresses the same concept.3 The meaning of such concepts
should initially be derived from the applicable law of a particular jurisdiction.
The rules of specific legal systems (taken together with the conceptions devel-
oped in jurisprudence and the case laws of a particular country) define ‘owner-
ship’, ‘tort’, or ‘contract’, particularly in terms of what the truth conditions are
for statements of the type ‘X is the owner of Y’ and ‘X and Y are bound by a
contract’. Such truth conditions are, at least to a certain extent, specific to a given

Downloaded from https://academic.oup.com/book/41922/chapter/354820823 by University of Hull user on 15 March 2024

legal system. Conversely, however, lawyers from different jurisdictions are usu-
ally successful in communicating through the use of such concepts. Although
the SMCs that they apply are jurisdiction-​specific, these lawyers display a strong
conviction that they are talking about the same ideas, and they typically achieve
mutual understanding and draw common reasonable conclusions. These goals
are especially important in international commercial arbitration, in which
arbitrators who frequently come from different jurisdictions are compelled to
make a unified decision, sometimes on the basis of the concepts of a legal system
that is alien to all of them. How can this paradox be explained?
To put it in a more general sense, a question that arises is whether our cur-
rent stock of concepts is adequate for meaningful communication across legal
traditions and cultures.4 The answer to this question is important for at least two
issues. The first, which is of theoretical importance, is whether a genuinely ge-
neral jurisprudence is possible. We will not focus on this issue because we have
in mind a more practical matter. That is, the second issue that emerges in the
context of international arbitration is the possibility of reaching understanding
amongst arbitrators with foundations rooted in different jurisdictions, legal
cultures, and traditions. Such understanding is achieved in most cases given
that international arbitration generally works well. Our questions, therefore, are
rather of the Kantian sort: how is common understanding possible, and what are
the limits of such understanding?
We do not believe that these questions have only one general answer, but rather
several partial answers. These answers must refer to several issues that we want
to analyse in more detail. Before proceeding, we discuss certain methodological
assumptions.

3
  We will not discuss the problems of double intermediacy, particularly linguistic intermediacy,
in the application of national law. See Jemielniak, Legal Interpretation in International Commercial
Arbitration, 64–​7.
4
  This is a paraphrase of a question formulated by William Twining, ‘Have Concepts, Will
Travel: Analytical Jurisprudence in a Global Context’, International Journal of Law in Context (2005), 7.
52 Adam Dyrda and Tomasz Gizbert-Studnicki

2.2. Methodological assumptions (an ideal arbitrator

and the emic vs. etic approach)
First, we assume that the questions we raise are not understood as empirical
questions. An empirical survey based on the investigation of arbitration proceed-
ings and particular decisions (including dissenting opinions) may be interesting for

Downloaded from https://academic.oup.com/book/41922/chapter/354820823 by University of Hull user on 15 March 2024

the purpose of determining how arbitration tribunals arrive (or why they fail to ar-
rive) at a common understanding of relevant concepts. Conducting such research
would probably be difficult given the confidentiality of proceedings and files, but
empirical research is not what we have in mind. As previously stated, our task is an-
alytical. For the purpose of this chapter, therefore, we adopt the image of an ‘ideal’
or ‘perfect’ arbitrator. Actual arbitrators are encumbered by numerous fact-​based
limitations. They do not possess full knowledge of their respective national laws,
lex mercatoria (LM), and supranational standards; they may not have mastered the
canons and rules of interpretation; they may have limited knowledge of the facts
of a case; they may not have full mastery of the language of arbitral proceedings;
and they may not be totally impartial. In what follows, we will not include any
such limitations and weaknesses of actual arbitrators in our discussion and instead
speak of ideal or perfect arbitrators, who are absolutely free of the aforementioned
deficiencies. Furthermore, we assume that such arbitrators are fully rational and
that the decision-​making process is not subject to time limitations.
Second, a useful approach in further analysis is to employ certain methodolog-
ical tools that were initially developed for linguistics and then applied in cultural
anthropology. What we have in mind here is the distinction between two possible
approaches to alien cultures, namely, the distinction between the emic and etic
approaches.5 Emic and etic perspectives are conceived of as theoretical devices in-
tended for the purposes of linguistics and anthropology, but we believe no obstacles
stop us from using them in practical contexts wherein comparing various cultures is
necessary, especially when such cultures clash.
In cultural anthropology, an emic perspective is defined as the internal perspec-
tive of a researcher, who strives to describe a particular culture in terms of the self-​un-
derstanding of the members of this culture. By contrast, an etic perspective pertains
to the external perspective of a comparativist researcher, who attempts to describe
phenomena in terms of general, external standards and categories that apply across
cultures.6 In other words, the emic approach investigates how local people think,

5
  Marvin Harris, ‘History and Significance of the Emic/​Etic Distinction’, Annual Review of
Anthropology, 5 (1976), 329–​50.
6
  Michael Morris, Kwok Leung, Daniel Amies, and Brian Lickel, ‘Views from Inside and
Outside: Integrating Emic and Epic Insights about Culture and Justice Judgments’, The Academy of
Management Review, 24/​4 (October 1999), 781.
 Do l egal conce pt s t ravel ? 53

how they perceive their rules of behaviour, and what holds meaning for them. The
etic approach focuses on what a researcher considers important from the perspec-
tive of comparative research on other cultures. The etic approach analyses culture
in terms that can be applied across cultures and attempts to be ‘culturally neutral’ in
that it excludes ethnocentric and cultural limitations or biases.
In the attempt to apply the emic/​etic distinction to our problem of interpreting
SMCs, the following questions arise: (1) should an ideal arbitrator adopt the etic

Downloaded from https://academic.oup.com/book/41922/chapter/354820823 by University of Hull user on 15 March 2024

or the emic approach? (2) what would be the practical consequences of adopting
either approach? and (3) is a purely emic or a purely etic approach workable?
At first glance, the emic approach is the more suitable of the two. If the subject
matter of a dispute is governed by a national law, the arbitrators should attempt to
understand such governing law in terms of the respective legal culture and not in
terms of their own culture(s). To put it colloquially, they should put themselves
in the shoes of a domestic judge with a foundation rooted in the national legal cul-
ture and decide on a case in the manner in which it would be decided by such a
judge. Otherwise, these arbitrators may be held accountable for making the wrong
decision or for incorrectly applying the governing law. Becoming a cultural insider
necessitates that arbitrators adopt an emic perspective.
We do not believe, however, that such a conclusion is justified. It presupposes
that the parties entering into an arbitration agreement intend to incite potential
disputes, which would be resolved as they would by the state courts of a respective
jurisdiction. We do not regard this intention as generally ascribable to the parties.
To the contrary, the parties decide on an arbitration mechanism of dispute resolu-
tion because they want to avoid the resolution of potential disputes by state courts.
They decide on international arbitration out of a desire to eliminate the biases of
a particular legal culture. They prefer supranational resolutions that should be de-
tached from the ‘internal point of view’ (to use H. L. A. Hart’s terminology) that is
characteristic of particular national jurisdictions. The genuine internal point of view
of a supranational arbitrator cannot be coextensive with that of a national judge,
which, by definition, corresponds to an emic perspective.
This does not mean, however, that adopting a purely etic approach should be
recommended. If a national legal system is (expressly or tacitly) selected by parties,
then the intention of the parties is to have their potential disputes resolved in accord-
ance with the rules of this particular system. Adopting a purely etic approach may
result in the disregard of such intention, because this perspective drives arbitrators
to abandon certain important features of a legal culture or to re-​interpret the con-
tent of legal rules in terms of general categories that are alien to this culture.7

7
  Compare Jemielniak, Legal Interpretation in International Commercial Arbitration, 63, for the dis-
tinction of three possible approaches to interpretation from this perspective.
54 Adam Dyrda and Tomasz Gizbert-Studnicki

From our perspective, therefore, an integrative emic–​etic approach should be

adopted. The methodology of cultural anthropology currently maintains that emic
and etic insights may be integrated and that the interplay of both may facilitate the
comprehensive understanding and explanation of cultural phenomena; these goals
can be realized provided that a researcher applies both approaches in a conscious and
reflexive manner and is aware of the limitations of these approaches.8 We believe the
same applies to practical problems arising in the context of international commercial

Downloaded from https://academic.oup.com/book/41922/chapter/354820823 by University of Hull user on 15 March 2024

arbitration.

2.3. Selected problems with an integrative

emic–​etic approach
Applying an integrative emic–​etic approach is by no means easy, both for theoretical
and practical reasons. In particular, difficulties arise in connection with the application
of the emic approach. As indicated above, the main problem is that our knowledge of
law is necessarily parochial, because our foundations are rooted in a particular legal cul-
ture, and we think in terms of our cultures and our concepts of law.9 This limitation
applies not only to actual arbitrators, but also to ideal or perfect arbitrators. Law is a
cultural phenomenon. A necessary hermeneutic truth is that an appropriate under-
standing of law is possible only in a context that considers a specific legal culture in its
entirety. When we examine an alien legal system, we do so necessarily from the per-
spective of our concept of law. Therefore, our perception of such a system is always, to
some extent, parochial—​a limitation that cannot be eliminated.10
Let us go back to our question of how arbitrators with foundations rooted in
various jurisdictions can arrive at a common conclusion. Our contention is that
such a goal is achieved through the integrated emic–​etic approach applied by ideal
arbitrators.
First, it is not true that all SMCs are exclusively jurisdiction-​specific. One of
the authors of this chapter argued elsewhere against the so-​called embedding theory
(ET) of SMCs.11 This theory maintains that the meaning of such concepts is fully de-
termined by the rules of a respective national law; it particularly asserts that SMCs
are equivalent to a set of inferential links that are defined by the rules of a national
law. Therefore, any legal concept is only a useful abbreviation of a set of inferential
links and can be easily eliminated.12

  Morris, Leung, Amies, and Lickel, ‘Views from Inside and Outside’, 794.
8

  Joseph Raz, ‘On the Nature of Law’, Archiv für Rechts-​und Sozialphilosophie, 82 (1996), 4.
9

10
  We take here the position of a moderate legal relativism. See Twining, ‘Have Concepts, Will
Travel’, 8.
11
  Gizbert-​Studnicki and Klinowski, ‘Are Legal Concepts Embedded in Legal Norms?’, 553–​62.
12
  Alf Ross, ‘TŭTŭ’, Scandinavian Studies in Law (1957), 139–​53.
 Do l egal conce pt s t ravel ? 55

The main argument developed against ET is based on the observation that cer-
tain (but not all) SMCs appear not only at the level of national legislation, but also
at the level of supranational laws (European law, international law, and human rights
law). Such supranational laws serve as benchmarks for assessing national legisla-
tion. This benchmarking gives rise to two issues. First, SMCs are not equivalent to
the sets of inferential links determined by a national law because a supranational law
also contributes to the content of SMCs. Second, the interpretation of SMCs must

Downloaded from https://academic.oup.com/book/41922/chapter/354820823 by University of Hull user on 15 March 2024

take into account supranational laws, which determine at least certain basic features
of the concepts; supranational laws also, therefore, determine which specific basic
truth conditions for statements that refer to SMCs are common to all jurisdictions.
Thus, arbitrators from different jurisdictions share such truth conditions, the spe-
cific extent of such sharing being the degree to which the content of SMCs overlaps
with that of a supranational law. Despite the peculiarities of national legislation, a
supranational law determines, at least partially, the core meaning of certain SMCs.
If the national law contains specific inferential links that are inconsistent with these
core SMC meanings, then such inferential links must be rejected. This discussion
indicates that interpreting such SMCs involves the use of emic and etic perspectives.
Second, certain SMCs have ‘travelled’ from national legislation to LM. LM is
an ambiguous designation, but we will not discuss its various meanings because
of space limitations.13 Referring to LM, we have in mind not so much a body of
codes and conventions (e.g. UNIDROIT, the Uniform Customs and Practice for
Documentary Credits, INCOTERMS), which are applicable only if the contract
between disputing parties refers to them (or in certain cases, does not explicitly
exclude their application). Our interest revolves around a set of more or less in-
formal customs, rules, and principles developed in commercial practice, inter alia
via arbitral case law that is based on the authority of a state or international orga-
nization. LM is sometimes subject to private codifications. As Tamanaha states,
‘[t]‌ransnational commercial practice and the intent of the parties, not state law,
provides the primary guidance to the arbitrators’ interpretation of the contracts’.14
Tamanaha also notes that ‘[t]ransnational commercial practice developed a set of
rules with respect to international transactions which are to a certain extent de-​
politicized and legal-​system indifferent’.15 We may say that only one LM exists at the
global scale, although its boundaries are unclear, and some of its components may
be vague or underdetermined. Therefore, although arbitrators come from different
jurisdictions, they share a common set of customs, rules, and principles, which are
not specific to given national legislation. This situation frequently facilitates the
common understanding of matters that are subject to arbitration and enables the

13
  See Jemielniak, Legal Interpretation in International Commercial Arbitration, 149–​74.
14
  Brian Tamanaha, A General Jurisprudence of Law and Society (2001), 126.
15
  Tamanaha, A General Jurisprudence of Law and Society, 126.
56 Adam Dyrda and Tomasz Gizbert-Studnicki

resolution of a dispute.16 Involving LM in the interpretation of SMCs is an instance

of the etic approach.
Nevertheless, reference to supranational legal standards that partially define
SMCs and prevail over national ones and reference to LM as a set of informally
developed standards, rules, and principles that do not originate from particular leg-
islation only partially explains why arbitrators with foundations rooted in different
legal cultures usually reach a common understanding of the SMCs relevant to the

Downloaded from https://academic.oup.com/book/41922/chapter/354820823 by University of Hull user on 15 March 2024

issues that give rise to an arbitration dispute. Why do such references constitute
only a partial explanation?
Several factors can be attributed to such partiality. The basic one is that a dis-
pute is usually (unless the arbitration agreement provides otherwise) to be decided
on the basis of a national law (either directly indicated in a contract or selected on
the basis of conflicts in laws and rules). Therefore, the concepts of this national law
are decisive. Supranational standards do not apply to all the legal concepts of a na-
tional law. In the first place, they apply to concepts that are directly or indirectly
linked to universal human rights (e.g. due process of law, autonomy, or ownership),
but do not apply to many others, including numerous SMCs. Furthermore, supra-
national standards do not always define SMCs in detail and refer only to selected
basic features; that is, they determine the ‘essence’ of such concepts, but leave very
many specific matters to national legislation. If a dispute is related to such specific
matters, reference to supranational standards would be unhelpful to dispute resolu-
tion. For example, a national regulation that provides for the right of one party to a
contract to settle a dispute with the other party by the party’s unilateral arbitrary de-
cision would be in breach of the supranational standards of due process of law and
fairness; therefore, the arbitrators would most probably declare such a contractual
clause void and ineffective, even if it is not explicitly prohibited by the applicable
national law. Conversely, the details of an appropriate mechanism for pre-​arbitral
methods of resolving a dispute between parties are left to national legislation.
In addition, certain concepts are either totally jurisdiction-​specific because they
do not have any direct equivalents in other jurisdictions (e.g. the concept of ‘per-
petual usufruct’—​‘użytkowanie wieczyste’ in Polish law—​which is only very roughly
similar to ‘Erbbaurecht’ in German law or ‘leasehold’ in English law) or are specific
to a certain type of jurisdiction (e.g. ‘beneficial ownership’ in common law, which
to our knowledge, does not have any direct equivalent in jurisdictions of the civil
law world). By contrast, certain concepts that appear in practically all jurisdictions
have similar meanings in all common law systems but different connotations in civil

16
  Joanna Jemielniak and Przemysław Miklaszewicz, ‘Introduction’, in Joanna Jemielniak and
Przemysław Miklaszewicz, ed., Interpretation of Law in the Global World: From Particularism to a
Universal Approach (2010), 62. Compare also Jemielniak and Miklaszewicz, ‘Introduction’, 17, who
write ‘[t]‌he continuing quest for determining a possible common core of diverse legal systems has been
the driving force of the lex mercatoria through arbitral case law, as well as via private codification efforts’.
 Do l egal conce pt s t ravel ? 57

law systems. These meanings are only very roughly equivalent (e.g. the concepts
of ‘trust’, ‘tort’, and, probably, ‘negligence’). As far as LM is concerned, its rules,
standards, and principles contain only a limited number of concepts, in the first
place linked to the trade of goods and services (e.g. delivery, payment, and delay).
Even if shared by arbitrators, LM concepts, therefore, do not allow for a solution to
all jurisdiction-​specific interpretation problems that may arise in connection with
dispute resolution.

Downloaded from https://academic.oup.com/book/41922/chapter/354820823 by University of Hull user on 15 March 2024

When we attempt to familiarize ourselves with the law of an alien jurisdiction,
we are in principle unable to fully overcome the limitations that stem from our cul-
tural roots and our understanding of our own cultures. We may exert our best efforts
and endeavour to understand the concepts of an alien culture, but the difficulty is
that most concepts cannot be thoroughly understood in isolation. Most concepts
of any legal system form a network, in which the meaning of one concept depends,
to a small or huge extent, on the meaning of others. A common-​law attorney can
attempt to understand the German or Polish concepts of a contract only if he/​she
is familiar, on one hand, with the broader concepts of a legal action (‘Rechtsgeschäft’,
‘czynność prawna’) and, on the other hand, with the concept of declaration of will
and the concept of defects of declarations of will. Such an attempt also depends on
the lawyer’s familiarity with the concepts of various deficiencies of declarations of
will (invalidity, suspended ineffectivity, voidability, and so on). To our knowledge,
the concept of a contract in common-​law jurisdictions is part of a different con-
ceptual framework. Frequently, in the context of international commercial arbitra-
tion, arbitrators must answer the question ‘is this a valid contract’? Formulating a
response necessitates a thorough understanding of not only the very concepts of the
contract, but also all related concepts.17 This requirement indicates that the emic,
rather than the etic, approach is appropriate.
This perspective applies to most, but not all, legal concepts. Certain concepts are
relatively isolated in the sense that their meaning does not greatly depend on the
meaning of other related concepts. As it appears, this observation may serve as (at
least) a partial explanation of the phenomenon described by Twining, that is, the
phenomenon that some legal concepts ‘travel well’, whereas others ‘travel badly’.18
A concept travels well if it can be used with reasonable clarity and precision across
various kinds of boundaries, including boundaries between jurisdictions. A concept
travels badly if its use is, for some reason, confined to a specific jurisdiction or type
of jurisdiction (e.g. civil-​law or common-​law jurisdictions) and cannot be directly
applied with respect to an alien legal culture.

17
  Jemielniak, Legal Interpretation in International Commercial Arbitration, 134, draws attention to
‘false friends’, namely, legal concepts that seem to have direct counterparts in other legal systems but
are not freely exchangeable. Examples are the concept of ‘contract law’ and addressing the issue of un-
foreseeable circumstances.
18
  Twining, ‘Have Concepts, Will Travel’, 8ff.
58 Adam Dyrda and Tomasz Gizbert-Studnicki

2.4. Which concepts travel well?

Twining analyses three examples of concepts that travel well.19 His first example
is irrelevant to the purpose of this paper given that it refers to fundamental legal
concepts as analysed by Hohfeld. In this paper, we deal only with SMCs, and
Hohfeldian concepts are formal and unsubstantive. Twining’s second example refers

Downloaded from https://academic.oup.com/book/41922/chapter/354820823 by University of Hull user on 15 March 2024

to the concept of ‘imprisonment’, which is relevant on a cross-​border basis pursuant
to the UN Standard Minimum Rules of Treatment of Prisoners (1955). The third
example—​a surprising one—​is the concept of ‘corruption’. Unfortunately, the last
two examples have very little (if at all) to do with international commercial arbitra-
tion and will, therefore, not be comprehensively discussed. Relevant to our topic,
however, is a feature common to both. That is, the last two concepts are relatively
isolated in the sense that grasping their meaning does not require the determination
of relationships between them and many other legal concepts (as is the case with
the concept of ‘contract’ indicated above). This isolation does not mean, of course,
that these concepts are precise and clear-​cut. To the contrary, many borderline cases
may arise, but the core meaning of both concepts appears to be insensitive to their
application across various legal cultures.
Twinning’s concern is of a theoretical nature given that his question is whether
a truly general jurisprudence is possible. Our question is more practical because
we are interested in the understanding of alien concepts by arbitrators in the con-
text of dispute resolution. An observation worth noting, however, is that the direct
relationship between ‘travelling well’ and ‘being relatively isolated’ from the entire
conceptual scaffold of a particular legal culture may be caused by the almost abso-
lute dependence of the legal meaning (use) of the term that refers to a particular
concept (e.g. the concept of corruption) on the core ordinary language meaning of
that term. In other words, a particular concept may be a good traveller if the con-
ceptual baggage it carries is somehow limited. Every traveller knows that a small
and light pack results in a comfortable journey. Thus, simple concepts that do not
have a long doctrinal history are good candidates for travel. Such concepts do not
need to be ‘translated’ within the entire conceptual scaffold (including doctrinal
controversies) but are translated in a manner very similar to that applied in the
simple ordinary language concepts to which they stay closely connected.
To sum up, our hypothesis is that the concepts that are interlinked in any given
legal system with many other legal concepts travel badly in the sense that an outsider
will experience difficulties in grasping their meaning. The appropriate interpretation
of such concepts necessitates the adoption of the emic approach. By contrast, the
concepts that are at least relatively isolated from other legal concepts travel well in
the sense that they are easily accessible to an individual whose foundation is rooted

19
  Twining, ‘Have Concepts, Will Travel’, 8ff.
 Do l egal conce pt s t ravel ? 59

in a different legal culture. The only condition is that in both cultures—​the emigrant
(the culture from which the concept travels) and the immigrant (the culture to which
the concept travels)—​a concept should be relatively isolated; that is, it should be
simple and connected to its easily translatable ordinary language counterpart.20 The
distinction between concepts that travel well and those that travel badly is not a log-
ical dichotomy. Whether a concept travels well or travels badly is a matter of degree.
Therefore, our third explanatory point related to our basic question is that reaching

Downloaded from https://academic.oup.com/book/41922/chapter/354820823 by University of Hull user on 15 March 2024

a common understanding of an SMC that is ‘isolated’ in the sense indicated above
is an easy task.
Unfortunately, perhaps most of the crucial SMCs that are relevant to the context
of international commercial arbitration travel badly. As indicated above, the funda-
mental concept of ‘contract’ is probably in all legal systems embedded in a network
of related concepts specific to a given legal system or a given type of legal system (for
continental legal systems, such concepts as declaration of will, invalidity, voidance,
and so on). The same perhaps applies to another crucial concept, the concept of
‘tort’. Therefore, the distinction between SMCs that travel well and those that travel
badly does not provide a fully satisfactory answer to our question of how arbitrators
come to a common conclusion, even if such a conclusion depends heavily on the
understanding of a concept specific to the applicable law. This deficiency exists, not-
withstanding cultural differences, differences in jurisdictions of origin, and the ap-
plication of laws that may be alien to all arbitrators.

2.5. Additional explanation: Incompletely

theorized outcomes
Let us come to our final explanatory point. Additional explanation may be sought
if we examine legal systems and cultures from a different angle. What we have in
mind here is a perspective that does not concentrate on cross-​cultural similarities
and differences amongst legal concepts, but on the outcomes that are generated
by the application of various cultural-​specific concepts to one and the same case
(or similar cases). We are particularly interested in the approach proposed in the
theory of comparative law by Markesinis (which we deem equally applicable to
scopes that are beyond the interest of comparative law).21 The starting point of

20
  To use Ludwig Wittgenstein’s metaphor, good travellers are those concepts that are not exclu-
sively determined by complicated and specific forms of life and are, therefore, able only to play a role
in language games performed with this form. Rather, given their simplicity, being a relatively stable
element of one form of life, they can be found in other, even very distinct, forms of life. Thus, they
can be applied in different language games performed in the context of even very distant forms of life.
21
  Basil Markesinis, ‘Unity or Division: The Search for Similarities in Contemporary European
Law’, Current Legal Problems, 54 (2001), 591–​617.
60 Adam Dyrda and Tomasz Gizbert-Studnicki

this approach is to look into cases and not concepts. As Markesinis indicates, ‘the
observer is comparing familiar situations and is not confused by structures, termi-
nology, or concepts that are either untranslatable or, if apparently easy to translate,
they are misleading’.22 Markesinis presents a brief comparison of the German con-
cept of ‘tort’ with respective common-​law concepts. ‘Tort’ in German law is closely
linked to the concept of ‘Rechtswidrigkeit’ (‘illegality’), which is historically derived
from the Roman concept of iniuria. Rechtswidrigkeit is determined by reference to

Downloaded from https://academic.oup.com/book/41922/chapter/354820823 by University of Hull user on 15 March 2024

the content of explicit legal rules or by reference to boni mores. Rechtswidrigkeit is
a necessary condition for ascribing liability in the torts of German law. No similar
concept can be found in the Anglo-​American tort of negligence, which is linked to
a more general concept of ‘duty of care’. As Markesinis states, ‘[t]‌he comparison of
two systems through their concepts is thus . . . off-​putting. This is because . . . you
cannot find the concept, notion or architecture you are looking for which is so self-​
evident to your foreign colleague’.23 However, if one examines outcomes (content of
judicial decisions related to similar cases in both jurisdictions), one will notice that
these outcomes closely resemble one another, notwithstanding major conceptual
differences. Different concepts may conceal similar solutions, and similar concepts
may hide differences.
This mechanism of comparing legal outcomes proposed by Markesinis resembles
Sunstein’s idea of ‘incompletely theorized agreements’ that are achieved in political
discourse when no shared background (a common comprehensive doctrine or set
of value-​laden concepts) on which such an agreement can be based exists.24 This
agreement is ‘incompletely theorized’ because the parties to a dispute do not share a
background theory (conceptual scaffold); the parties nonetheless achieve the same
result whilst relying on particular, usually conflicting, theories. Such a strategy for
achieving agreement, which we may call ‘concretization and consequencealization’,
is a reverse of ‘abstraction’, which recommends abstracting a concept (i.e. its
conceptions) from competing theories and identifying the basic assumptions
(values) on which a theory rests (the general concept itself); eventually, a con-
sensus is built upon the recognition of this shared set of cultural assumptions.25 The
strategy of abstraction presupposes that the concept in question ‘travels well’ (at
least to the extent to which travel is possible when an immigrant concept as a valid
passport for such travel presents a simple understanding or meaning that can be
determined by a rough reference to the background elements on whose basis such
concept functions in both immigrant and emigrant cultures), whereas the opposite
strategy does not provide such a presupposition.

  Markensinis, ‘Unity or Division’, 593.

22

  Markensinis, ‘Unity or Division’, 594.

23

24
  Cass S. Sunstein, ‘Practical Reason and Incompletely Theorized Agreements’, in E. Ullmann-​
Margalit, ed., Reasoning Practically (2000), 106–​22.
25
  Such a procedure is developed by J. Rawls, for example, in Political Liberalism (1993), 7, passim.
 Do l egal conce pt s t ravel ? 61

As previously mentioned, different concepts may conceal similar solutions.

The question that arises is why outcomes are identical or similar. We argue
that the similar outcomes reached in jurisdictions with different conceptual
schemes are in the last instance based on either similar policy considerations
or a sole reference to acceptable outcomes by parties that do not share political
considerations. The outcomes based on the first option would be an effect of the
abstraction strategy and would, therefore, be similar to the former explanation

Downloaded from https://academic.oup.com/book/41922/chapter/354820823 by University of Hull user on 15 March 2024

of a concept as a ‘good traveller’, although for different reasons. In this case, such
outcomes will not be the concepts but the warmly welcomed results. Of course,
we use the category ‘policy considerations’ (for lack of a better term) in a very
broad sense. In particular, this category includes the goals to be achieved by the
implementation of legal rules, the ethical values that underlie legal rules, and the
prudential rules applied in adjudication. The same goals may be achieved, and
the same values may be protected by different rules based on different concep-
tual frameworks. To the extent to which various legal orders have a common or
similar ethical background, they provide for different ways of achieving the same
outcome. Technically, such legal orders differ, but they are substantially similar as
far as basic purposes and values are concerned. If lawyers with foundations rooted
in different legal cultures are confronted with a case, they may apply different con-
ceptual schemes and, therefore, structure the issues to be solved in different ways.
In most cases, however, the outcome will be the same, provided that the policy
considerations of each of the legal orders are similar. Practically speaking, ref-
erence to shared policy considerations may be conceived of as a very common
base for achieving agreement amongst arbitrators in cases wherein the concepts
at stake are very bad travellers. Nevertheless, we cannot theoretically exclude the
conclusion that the resolution in very difficult cases will be merely based on the
coincidence of the outcomes of seriously diverging policies. This possibility is
merely theoretical insofar as it is connected to a practical problem, that is, how in
such circumstances a decision will be justified.26

26
  It may be claimed that if each arbitrator (assuming three arbitrators, A1, A2, and A3) reaches the
same outcome O by using different tools and considerations [P(A1), P(A2) and P(A3), respectively],
the justification of a decision can be presented either in a ‘weak’ disjunctive form, { P(A1) ∨ P(A2) ∨
P(A3) } → O, or in a ‘strong’ conjunctive form, { P(A1) ∧ P(A2) ∧ P(A3) } → O. The weak form would
exactly resemble the process of heuristics but would also allow the risk that the particular, conflicting
reasons that arbitrators had whilst reaching the outcome would be unsatisfactorily appreciated; con-
versely, the strong form may be counter-​intuitive for someone who cannot accept that contradictory
premises can generate one outcome (another plausible argument is that in such case, each outcome
would be the right outcome, according to the logical rule that {X, −X} → Y, where Y is ‘whatever’).
This argument is the last point that eventually (at least in the case of justification of the decision), some
common elements of A1, A2, and A3 have to be found and underlined; these elements are roughly re-
ferred to as ‘policy considerations’.
62 Adam Dyrda and Tomasz Gizbert-Studnicki

2.6. Final reflections

The above conclusion may serve as a partial explanation of our problem, provided
that a certain pre-​condition is satisfied. This condition is that the legal cultures in-
volved have fundamentally similar legal backgrounds. The question of whether
this pre-​condition is satisfied is an empirical one given that determining an an-

Downloaded from https://academic.oup.com/book/41922/chapter/354820823 by University of Hull user on 15 March 2024

swer necessitates a careful investigation of the values that underlie various legal
cultures. Perhaps particular cultures that fall under this perspective are similar in
certain aspects and different in others. We may suppose, for example, that in the
sphere of public law, numerous differences exist because the political philosophies
that prevail in different legal cultures may be distinct. Conversely, a plausible as-
sumption is that the ethical backgrounds of different legal cultures in the sphere
of private law are similar. Leaving aside any exotic legal cultures and considering
only those that belong to the family of Western law, we may observe a fundamental
convergence of basic values in private law. Thus, a common justification for the de-
cision of arbitrators naturally arises. Private law is based on the principles of human
freedom and autonomy; it is based on the principle of protecting the justified ex-
pectations of parties and on the general principle of fairness. Although these values
and principles may be (and actually are) implemented in a legal order in many dif-
ferent ways through various conceptual frameworks, a fundamental convergence
is in place. Therefore, notwithstanding divergences of conceptual schemes, which
may be (and actually are) specific to a legal order, the application of these schemes
generates identical or closely related outcomes. However, in cases where the cul-
tural backgrounds of arbitrators are so unusual that no substantial common prin-
ciples of policy can be indicated as bases for shared outcomes, arbitrators will have
to formulate an interpretation in such a way that such interpretation can count as a
shared background to justify their decisions. This goal will be possible not because
of substantial ethical values of any kind, but because of the role arbitrators are sup-
posed to play in arbitration. This role, being accepted by the parties involved, can
be conceived of as a general, procedural, and (only in this sense, ethical) shared as-
sumption that enables the resolution of a case.

References
Gizbert-​Studnicki, Tomasz and Mateusz Klinowski, ‘Are Legal Concepts Embedded in Legal
Norms?’ International Journal for the Semiotics of Law, 25/​4 (2012), 553–​62.
Harris, Marvin, ‘History and Significance of the Emic/​ Etic Distinction’, Annual Review of
Anthropology, 5 (1976), 329–​50.
Jemielniak, Joanna, Legal Interpretation in International Commercial Arbitration (2014).
Jemielniak, Joanna and Przemysław Miklaszewicz, ‘Introduction’, in Joanna Jemielniak and
Przemysław Miklaszewicz, ed., Interpretation of Law in the Global World: From Particularism to
a Universal Approach (Berlin, Heidelberg 2010).
 Do l egal conce pt s t ravel ? 63

Markesinis, Basil, ‘Unity or Division: The Search for Similarities in Contemporary European Law’,
Current Legal Problems, 54 (2001), 591–​617.
Morris, Michael, Kwok Leung, Daniel Amies, and Brian Lickel, ‘Views from Inside and
Outside: Integrating Emic and Epic Insights about Culture and Justice Judgments’, The
Academy of Management Review, 24/​4 (October 1999), 781–​96.
Rawls, John, Political Liberalism (New York, 1993).
Raz, Joseph, ‘On the Nature of Law’, Archiv für Rechts-​und Sozialphilosophie, 82 (1996), 1–​25.
Ross, Alf, ‘TŭTŭ’, Scandinavian Studies in Law (1957), 139–​53.

Downloaded from https://academic.oup.com/book/41922/chapter/354820823 by University of Hull user on 15 March 2024

Sunstein, Cass S., ‘Practical Reason and Incompletely Theorized Agreements’, in E. Ullmann-​
Margalit, ed., Reasoning Practically (Oxford, 2000), 106–​22.
Tamanaha, Brian, A General Jurisprudence of Law and Society (Oxford, 2001).
Twining, William, ‘Have Concepts, Will Travel: Analytical Jurisprudence in a Global Context’,
International Journal of Law in Context (2005), 5–​40.