Originally from Defeating and Defending Awards: Arbitrability, Public Policy, and Global Court Practice

PREVIEW

2.1   Introduction

This research project utilises a combination of four different research methods, namely (1) Part Descriptive; (2) Traditional Legal Dogmatic – Problems-Orientated; (3) Part Comparative, and (4) Empirical – Quantitative and Qualitative. This chapter addresses the question of the methods used. Whilst detailed analysis and explanations are provided for the four methods employed, it does not go into any detail regarding the practical aspects of the empirical elements used in respect of the harvesting of court decisions for the empirical analysis in answering the third Question:

C:  There is a pro-enforcement approach consensus under the New York Convention 1958, that Article V(2)(a) and Article V(2)(b) should be interpreted restrictively in favour of enforcing international arbitral awards. What is the evidence for this consensus?

It is considered that that part of the research method is best placed immediately prior to the findings, as it makes more sense for the readers to correlate and understand the methods and the results in a closer proximity.

Although for each of the four methods employed, a description and discussion are offered, the empirical methods warranted a more technical description. The reason for this is that whilst the other three dogmatic legal research methods are more frequently used in legal research, the empirical method – especially quantitative research – is less frequently used. To avoid misunderstanding, this chapter provides a little more detail in this regard to explain what the author is doing and what she means in terms of this empirical method. The discussion on each of the methods also offers the correlations between the specific method applied to the research question and the corresponding chapters of the thesis. The text continues by discussing the connection between the four different methods, whilst examining their advantages and disadvantages where appropriate.

As a matter of good housekeeping, it should be clarified that perhaps this chapter on methods and methodologies may be considered lengthier than the norm in a legal thesis such as this. There are several reasons for this, however, the main reason is that – as is the usual practice – it is the research questions that dictate the research method or methods. This research project is of a level of challenge and complexity that requires the four combined methods of research. For this particular research project, besides the theoretical legal analysis requirements of the research questions, it additionally calls for an evidence-based law analysis; meaning it requires an investigation of the law–in–action namely, the national court judgments of the New York Convention 1958 Members States. This aspect of the research work necessitates the collection of court decisions in a particular controlled manner to ensure reliability of data, leading to credible results. It also requires transparency for verification purposes.

The text offers an insight into the materials relied on, the sources used, and the analytical tools employed to carry out the quantitative part of the work. This chapter also offers a section on the rejection of legal database search engines and the reasons for their rejection.