Adr

International commercial arbitration is subject to several limitations as a setting in which to examine the role of commercial norms in resolving commercial disputes. First, data on the subject is not widely available. Arbitration awards ordinarily are confidential, and only a non-random sample is made public, usually without identifying the parties or the arbitrators involved.(146) Some of the published awards are so heavily edited that it is difficult to understand what actually happened. The rules of the various arbitration institutions are more widely available; however, data on the frequency with which those rules are utilized is poor. Almost no data is available on the extent to which the rules are incorporated into arbitration agreements. Some data is available on the number of disputes arbitrated under the rules of various institutions,(147) but even that data is unreliable.(148) Accordingly, the analysis that follows in Part IV is largely impressionistic. Second, there can be a substantial degree of overlap between the provisions of institutional rules and arbitration statutes, the substantive laws applicable to the dispute, and the rationale of the arbitrators in making their award. If the institutional rules or the arbitration laws of the situs require the arbitrators to take usages of trade into account in their decision, that the arbitrators do so may say more about their adherence to the parties' agreement or to the governing law than whether they believe such consideration benefits the parties, and thus will get them selected more often in the future to be an arbitrator. At worst, however, this will result in some overlap as the evidence is considered. More troubling is that national laws and the CISG likewise provide that usages of trade and the parties' dealings should be considered in resolving contract disputes.(149) As a result, an arbitrator who considers commercial norms may be doing so because of the very legal requirements that this article is trying to evaluate.(150) Nonetheless, institutional rules and arbitration statutes that require arbitrators to consider trade usages do so regardless of the national law that will govern the dispute,(151) which suggests that the requirement is not one that results simply from national substantive contract laws. Third, the analysis is complicated because of model arbitration rules and a model law on international arbitration promulgated by the United Nations Commission on International Trade Law (UNCITRAL).(152) The Model Rules and Model Law have been highly influential. The Model Rules frequently have been adopted by arbitration institutions, while the Model Law has been enacted by countries seeking to be arbitral sites, often with minimal changes from the original text.(153) Part IV of this article will discuss the effect of the Model Rules and the Model Law in more detail.(154) Fourth, there may be aspects of international transactions--such as the very existence of differing national legal schemes--that make the use of commercial norms of greater value in that setting than in purely domestic disputes.(155) Or it may be that international commerce is still in its early stages, and so reliance on commercial norms is more likely than in more mature national markets.(156) While these weaknesses do not seem relevant for evaluating the CISG's reliance on commercial norms, they may raise some questions about the applicability of this analysis to the UCC and other national commercial laws that require consideration of commercial norms in resolving contract disputes. Despite these limitations, international commercial arbitration nonetheless provides a better source of evidence for evaluating the role of commercial norms in contract dispute resolution than does trade association arbitration. The next section describes what the evidence shows.