“What Does He Think This Is? The Court of Human Rights or the United Nations?”

• A. Introduction

  The purpose of arbitration is “to obtain fair resolution of disputes by an impartial tribunal without unnecessary delay or expenses”, as aptly indicated by the UK Arbitration Act 1996 – Section 1(a) – and recourse to such arbitration seems to have been enhanced by the rapid increase in international trade in recent years. This is why this formula would appear to receive particular preference in settling disputes in international trade settings, particularly in those cases where parties belong to different legal traditions. To this purpose, the United Nations Commission on International Trade Law (UNCITRAL) offers the Model Law (emended in 2006) on international commercial arbitration (ICA) whose purpose is to assist states “in reforming and modernizing their laws on arbitral procedure so as to take into account the particular features and needs of international commercial arbitration”.¹xSee <www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html>, accessed on 1 September 2013.
  Arbitration is regarded as an alternative dispute resolution (ADR), in which the parties agree that an independent third party, the Arbitrator or the Arbitral Tribunal, should pronounce the final decision after considering the evidence and submissions in exactly the same way as a judge would do in a court of law. The term ‘alternative’ does not refer to the fact that arbitration is an alternative to legal processes but rather to the fact that arbitration is a private, that is, confidential, extra-judicial process and, as such, an alternative to the public judicial process held in the court of law. It is, therefore, an alternative dispute resolution because it is an extra-judicial process resolved privately outside an ordinary court of justice. As such, the award has the same legal effects as a judgment pronounced by a court judge.²xSee S.M. Maci, ‘Litigation Procedures in Arbitral Practice: A Case of Arbitral Litigation?’, in S. Sarcevic (Ed.), Legal Language in Action: Translation, Terminology, Drafting and Procedural Issues, Zagreb, Kakladini zadov Globus 2009, pp. 393-410; S.M. Maci, ‘The Modus Operandi of Litigation in Arbitration’, in V.K. Bhatia, C. Candlin & M. Maurizio (Eds.), The Discourses of Dispute Resolution, Bern, Peter Lang 2010, pp. 69-83; and S.M. Maci, ‘Arbitration in Italy. Litigation Procedures in Arbitral Practice’, in V.K. Bhatia & P. Evangelisti Allori (Eds.), Discourse Identity in the Professions. Legal, Corporate and Institutional Citizenship, Bern, Peter Lang 2011, pp. 213-237.
  The gathering of information in arbitration can be preceded by a pre-trial process in which arbitrators try to reach a conciliation agreement between the parties. Such an attempt is usually realised as a witness hearing, where the parties, their counsels, and the arbitrator panel meet officially. If an agreement is not reached, the arbitration process begins with the gathering of the parties’ memories. In both oral and written evidence, language is used argumentatively, and above all persuasively, by all sides or parties involved, who have “an equal opportunity to convince”.³xN.C. Ulmer, ‘Language, Truth, and Arbitral Accuracy’, Journal of International Arbitration, Vol. 28, No. 4, 2011, pp. 295-311, at 296. Indeed, the testimony or memory of each party “is considered the best arbitration practice as a powerful tool to reach the ‘truth’ on facts verified during the litigated relationship and brought to the attention of the arbitral tribunal”.⁴xF.E. Ziccardi, ‘Enforcement of Arbitral Awards in Hong Kong: Legal and Political Challenges’, in V.K. Bhatia & P. Evangelisti Allori (Eds.), Discourse Identity in the Professions. Legal, Corporate and Institutional Citizenship, Bern, Peter Lang 2011, pp. 63-71, at 66.
  Although the Model Law of UNICITRAL tries to level out and make uniform the different legal systems existing in international arbitration, the gathering of evidence in different countries varies greatly, not only across criminal and civil procedures but also across domestic rules, which do not necessarily follow the great divide between common law and civil law countries.⁵xIbid., p. 64.
  A further problem lies in the way in which communication occurs during the arbitral proceeding. Precisely because the decision created by the parties whose dispute is asked to be resolved with arbitration has legal effects, there have been growing concerns about the way in which the arbitral proceeding leading to the award is written. There is indeed the perception that the (legal) language used in the whole arbitral process, from the gathering of the parties’ memories to arbitral pronouncement is a different language from ordinary English. This issue is particularly relevant for arbitrators, because they are responsible to the parties who appointed them to give a clear decision on the dispute under consideration. The clearer the award, the easier it will be accepted by the parties and the more likely it will demonstrate impartiality and logical reasoning. Clarity of language is necessary because of the right the parties have to receive unambiguous information about the benefits and the obligations deriving from the arbitral award. Clarity of language is also necessary when memories are written: indeed, each party also has the right to fully understand the written documents presented to the arbitral tribunal by the other party in order to submit any written argument or evidence which can better help the arbitral panel to reach the truth and pronounce the award.⁶xSee <www.davidelliott.ca>, accessed on 23 January 2014.
  Extensive studies in arbitration have been carried out from the viewpoint of law, focussing on such topics as the role of international arbitration, the drafting and enforcement of arbitration awards, the appointment and number of arbitrators and their international function, challenging arbitrators and awards, as well as issues of confidentiality and of trans-national rules and globalisation in arbitration.⁷xSee, for instance, W. Miles ‘Practical Issues for Appointment of Arbitrators: Lawyer v. Non-Lawyer and Sole Arbitrator v. Panel of Three (or More)’, Journal of International Arbitration, Vol. 20, No. 3, 2003, pp. 219-232; S. Zaiwalla, ‘Challenging Arbitral Awards: Finality Is Good but Justice Is Better’, Journal of International Arbitration, Vol. 20, No. 2, 2003, pp. 199-204; A. Marriott, ‘Less is More: Directing Arbitration Procedures’, Arbitration International, Vol. 16, No. 3, 2004, pp. 261-278; C. Debattista. ‘Drafting Enforceable Arbitration Clauses’, Arbitration International, Vol. 21, No. 2, 2005, pp. 233-240; H. Seriki, ‘Anti-Suit Injunctions and Arbitration: A Final Nail in the Coffin?’, Journal of International Arbitration, Vol. 23, No. 1, 2006, pp. 25-38; G. Aksen, ‘Reflection on International Arbitrator’, Arbitration International, Vol. 23, No. 2, 2007, pp. 255-259; C.N. Brower, ‘W(h)ither International Arbitration? The Goff Lecture 2007’, Arbitration International, Vol. 24, No. 2, 2008, pp. 181-197; M.S. Kurkela et al., ‘Certain Procedural Issues in Arbitrating Competition Cases’, Journal of International Arbitration, Vol. 24, No. 2, 2007, pp. 18-210; G. Nicholas & C. Partasides, ‘LCIA Court Decisions on Challenges to Arbitrators: A Proposal to Publish’, Arbitration International, Vol. 23, No. 1, 2007, pp. 1-41; P.R. Rees, ‘The Conduct of International Awards in England: The Challenge Has Still to Be Met’, Arbitration International, Vol. 23, No. 2, 2007, pp. 505-510; T.H. Webster, ‘Evolving Principles in Enforcing Awards Subject to Annulment Proceedings’, Journal of International Arbitration, Vol. 23, No. 3, 2006, pp. 201-226; I. Thoma, ‘Confidentiality in English Arbitration Law: Myths and Realities about Its Legal Nature’, Journal of International Arbitration, Vol. 25, No. 3, 2008, pp. 299-314; R. Ziadé & C. De Taffin, ‘Fact Witnesses in International Arbitration’, Revue de droit des affaires internationales/International Business Law Journal RDAI./IBLJ, No. 2, 2010, pp. 115-134; M. Scherer, ‘Globalization of International Commercial Arbitration’, Revue des Juristes de SciencesPo, No. 2, 2010, pp. 64-67; M. Schneider, ‘Twenty-Four Theses about Witness Testimony in International Arbitration and Cross-Examination Unbound’, in M. Wirth, C. Rouvinez & J. Knoll (Eds.), Search for Truth in Arbitration: Is Finding the Truth What Dispute Resolution Is about – ASA (Swiss Arbitration Association), Vol. 35, 2011, pp 63-69; and L. Mistelis, ‘General Principles of Law and Transnational Rules in International Arbitration: An English Perspective’, World Arbitration and Mediation Review, Vol. 5, No. 2, 2011, pp. 201-230. Training courses on these topics are also offered (e.g. those of CIArb, LCIA, ICC, and the Queen Mary School of Law of the University of London). Research has been carried out about Plain Language in law, which has been accompanied by the elaboration of plain English guidelines for lawyers,⁸xSee, for instance, J.M. Dorney, ‘The Plain Language Movement’, The English Journal, Vol. 77, No. 3, 1988, pp. 49-51; and T. McArthur, ‘Pedigree of Plain English’, English Today, Vol. 7, No. 3, 1991, pp. 13-19. though not applied to arbitral proceedings.⁹xR. Flesch, How to Write Plain English: A Book for Lawyers & Consumers, New York, Harper and Row, 1979; R. Wydick, Plain English for Lawyers, Durham, Carolina Academic Press, 1985; M.M. Asprey, Plain Language for Lawyers, Sydney, The Federation Press, 1991. As to Plain Language Movement and Arbitration, the only document found is available at: <www.davidelliott.ca>, accessed on 23 January 2014.
  From an applied linguistics angle, the most recent research on arbitration draws on discourse-based data in order to investigate those aspects of arbitration practice that are considered crucial for its integrity as an institution and its independence as a professional practice and to what extent it is increasing influenced by litigation processes and procedures.¹⁰xSee V.K. Bhatia, C. Candlin & M. Gotti (Eds.), 2010, The Discourses of Dispute Resolution, Bern, Peter Lang 2011; and V.K. Bhatia, C. Candlin, N. Christopher & M. Gotti (Eds.), Discourse and Practice in International Commercial Arbitration Issues, Challenges and Prospects, London, Ashgate 2012. The study of interaction in legal contexts, with particular regard to witness testimony and cross-examination¹¹xS. Harris, ‘Fragmented Narratives and Multiple Tellers: Witness and Defendant Accounts in Trials’, Discourse Studies, Vol. 3, No. 1, 2001, pp. 53-74; and P. Hobbs, ‘“You Must Say it for Him”: Reformulating a Witness’ Testimony on Cross-Examination at Trial’, Text, Vol. 23, No. 4, 2003, pp. 477-511. in ICA, has recently been carried out by Bhatia (2011), Anesa (2010), and Maci (2012)¹²xIn particular, see V.K. Bhatia, ‘Witness Examination as Interdiscursive Practice’, World Englishes: Journal of English as an International and Intranational Language, Vol. 30, No. 1, 2011, pp. 106-116; P. Anesa, ‘Spoken Interaction in Arbitration: An Analysis of Italian Arbitration Proceedings’, in V.K. Bhatia, C. Candlin & M. Gotti (Eds.), The Discourses of Dispute Resolution, Bern, Peter Lang 2010, pp. 207-230; and S.M. Maci, ‘Arbitration in Action: The Display of Arbitrators’ Neutrality in Witness Hearings’, in V.K. Bhatia, C. Candlin & M. Gotti (Eds.), Discourse and Practice in International Commercial Arbitration Issues, Challenges and Prospects, London, Ashgate 2012, pp. 225-238. , who have described the processes of arbitral hearings and the writing of minutes. To the best of my knowledge, there has been neither an investigation on arbitral memories across national and professional cultures nor any readily available comprehensive research about the way in which communication in written memories is clearly and effectively realised. Therefore, by carrying out a comparative analysis of the written evidence presented in two arbitral processes, this paper tries to evaluate the degree of influence that different legal cultures may exert on the type of language used in written arbitration evidence. In particular, I will examine what type of keywords occur in the texts I have examined, along with their concordance lists and collocates. The main objective is to offer insights into some instances of arbitration proceedings and their development within their British and Italian contexts.

• B. Background

  I. Arbitration in the UK and in Italy

  The long tradition of international arbitration in the UK has been underlined by the Arbitration Act of 1996. In a country with a common law system which has a preference for a “casuistic approach, where many different cases are considered and details are punctiliously made explicit”¹³xG. Garzone, ‘Arbitration Rules across Legal Cultures: an Intercultural Approach’, in V.K. Bhatia, C. Candlin & M. Gotti (Eds.), Legal Discourse in Multilingual and Multicultural Contexts. Arbitration Texts in Europe, Bern, Peter Lang 2003, pp. 177-220, at 212. A casuistic approach assumes that the law develops and acquires further meaning each time that rules are applied to individual cases, rather than being fixed in general doctrines. , the provisions of the Act represent the first example of legislation in writing as regards this issue in the UK.¹⁴xSee G. Tessuto, ‘The English 1996 Arbitration Act’, in V.K. Bhatia, C. Candlin & M. Gotti (Eds.), Legal Discourse in Multilingual and Multicultural Contexts. Arbitration Texts in Europe, Bern, Peter Lang 2003, pp. 338-379. The Arbitration Act has been a necessary measure aimed at making arbitration simpler and clearer, so as to reduce court intervention on arbitration.¹⁵xP.J. Rees, ‘The Conduct of International Awards in England: The Challenge Has Still to Be Met’, Arbitration International, Vol. 23, No. 2, 2007, pp. 505-510, at 505. Apparently, the popularity of the UK as a venue for international arbitration has increased since the Arbitration Act of 1996: the ICC Statistical Report¹⁶xICC, The International Court of Arbitration Bulletin, Vol. 24, No. 1, 2013. seems to indicate that the total number of disputes resolved through arbitration and mediation in the UK has increased by 40% between 2007 and 2010. This, however, does not mean that the Arbitration Act of 1996 can be said to have achieved the goal for which it was drawn up. Rather, it seems to be a consequence of the extremely difficult financial conditions deriving from the economic crises of the past few years. In addition, to date, arbitration in the UK has been regarded as a long and costly process because it follows court procedures.¹⁷xRees 2007, p. 506. This explains why parties still rightly attempt to steer away from arbitration proceedings by seeking an amicable resolution of their disputes during the course of their projects.
  Arbitration in Italy is a highly standardised legal procedure ruled by Articles 806-832 of the reformed Code of Civil Procedure (CCP). Yet, despite the efforts of the UNCITRAL Model Law on International Commercial Arbitration to make international arbitration a flexible procedure moving beyond domestic rules, in Italy the CCP Article 832 provided separate regulations for national and international arbitration, thus making international arbitration a subcategory of national arbitration. The conflicts existing between the Italian Arbitration Law as stated in the CCP and the UNICTRAL Model Law were brought to an end thanks to Law 80/2005 which stated the need for a reform of arbitration legislation; this requirement was to be delegated to the Government.¹⁸xSee D. Cutolo & A. Esposito, ‘The Reform of the Italian Arbitration Law. The Challenging of Arbitrators and the Setting of Time Limits’, Journal of International Arbitration, Vol. 24, No. 1, 2007, pp. 49-62, at 53. The reform drawn up by government legislators took place in 2006 with Legislative Decree 40.¹⁹xSee <www.camera.it/parlam/leggi/deleghe/06040dl.htm>, accessed on 1 October 2013. Since then, the local Chambers of Commerce, within which Arbitral Courts have been constituted, have strongly invited the parties to (a) adopt a standard arbitration procedure according to the guidelines of its institutional body (the Arbitral Chamber of the local Chamber of Commerce) and (b) allow the Arbitral Chamber to appoint legal experts as arbitrators.²⁰xIn theory, any professional can be a member of the Board of Arbitrators of the local Arbitration Chamber. This is possible provided that the would-be arbitrator complies with certain requirements as established by law, such as, for example, having at least three-years’ experience in legal and financial matters and having been appointed as an arbitrator at least three times. In practice, only legal specialists are appointed as arbitrators in an arbitration procedure, whereas all the other experts are appointed as consultants. The reason for this lies in the fact that the majority of awards made up to 2006 have been challenged before the Court of Appeal on legal grounds.

  II. Arbitral Evidence

  Witness examination in arbitration is usually replaced by a detailed written statement in order to reduce cost and time and to provide for what in legal terms is known as discovery or disclosure²¹xSee Bhatia 2011. . In common law countries, witness examination to obtain disclosure is not very common but is allowed according to the discretion of the arbitral panel, whereas it is an unfamiliar procedure in civil law jurisdictions. The frequent use of written evidence in ICA reflects the influence of civil law tradition. ICA, therefore, seems to echo the balance between common law and civil law practices and traditions.
  In the absence of an agreement between the parties, the Arbitration Act of 1996 (Section 34(2)(h)) gives the arbitrator the power to decide “whether and to what extent there should be oral or written evidence or submissions”. Therefore, the hearing of oral evidence may be dispensed with by the arbitral panel if it is considered unnecessary.
  In Italy, the reform of arbitration, hinted at in the previous paragraph, has made it clear that ADR has a core legal format²²xAs regards the development of Italian arbitration, see Maci 2009, 2011. in the sense that the arbitral panel has the same rights and powers as a judge and the final award has the same legal effects as a judgment. Therefore, not only do arbitrators apply the Italian CCP in arbitral practice, they also follow Art. 816-ter of CCP dealing with arbitral procedures which states that the arbitral tribunal can decide whether to have witness hearings or written answers if so decided by the president of the arbitral panel or whether the proceedings are to be conducted on the basis of documents and other materials, as indicated by Art. 22 of the UNCITRAL Model Law. The final decision of the judge cannot be conditional upon this type of examination, as the judgment is based on reasoning which reflects the judge’s interpretation of the law applied to the case under discussion.

  III. The Plain Language Movement: The Cases of the UK and Italy

  The principles on which the plain English movement is based are clarity and comprehension of legal documents to the average person. Though the modern movement began in the 1970s, there have been complaints about the obscurity of legal language for centuries.²³xMcArthur 1991, p. 13. The simplification process of legalese, which changed both the legal language and traditions that had characterised British courts for decades, was greeted by the plain English movement in 1995. In 1999, the Lord Chancellor’s Department issued the Civil Procedure Rules (CPR) in 1999. The CPR main objectives, as defined in paragraphs 1.1. and 1.2., aimed at rendering civil procedure more accessible to ordinary people, simplifying legal language, promoting swift settlement, speeding up civil justice, and making litigation more efficient and less costly.²⁴xThe aspects connected to the simplification of legal language can be found in Lord Woolf’s Interim Report on Access to Civil Justice (1995) and Final Report on Access to Civil Justice (1996), respectively, available at: <www.dca.gov.uk/civil/interim/woolf.htm> and <www.dca.gov.uk/civil/final/index.htm>, accessed on 1 October 2013. With the CPR, Old Latin and French law terms such as writ or plaintiff or such Latin expressions as ex parte and inter partes were replaced by ‘plain English’ terms,²⁵xR. Vystrčilová, ‘Legal English’, in Acta Universitatis Palackianae Olomucensis Facultas Philosophica, Vol. 73, 2000, pp. 90-96. but also the linguistic density and wordiness caused by lengthy sentences were reduced.
  Similar procedures concerning the simplification of bureaucratic language were introduced in Italy much later than the UK. The process started at the beginning of the 1990s.²⁶xT. De Mauro, Progetto di semplificazione de linguaggio. Manuale di stile, available at: <www.entilocali.provincia.le.it/nuovo/files/Progetto%20di%20semplificazione%20del%20linguaggio.pdf>, accessed on 23 January 2014. The initiative was promoted by the Italian Government, which issued a directive in 2002²⁷xDirettiva sulla semplificazione del linguaggio dei testi amministrativi, <www.funzionepubblica.it/chiaro/direttiva.pdf>, accessed on 1 October 2013. aimed at facilitating readability and comprehension of administrative texts. This norm, however, dealt with issues related to the simplification of legalese only partially because it was mainly conceived for legal texts issued by governmental offices. Efforts have, nevertheless, been done since then to render bureaucratic language more intelligible because of the awareness that by writing legal texts in an incomprehensible language meant negating the right every citizen has of knowing what rights and obligations derive from the law.
  The extent to which the plain language movement objectives are realised in the written memories submitted in English and Italian arbitral proceedings will be discussed in the following paragraphs.

• C. Methodological Approach

  One of the main issues in collecting my corpus is confidentiality, which is the main prerogative of international arbitration. This is what justifies the paucity of the corpus and the decision to transform my analysis into two case studies. I was able to collect two written documents (WDs) presented as evidence in two different arbitral proceedings. Both WDs have been written by the legal representatives of the parties involved in the arbitral proceeding. The English WD (WD1) has been obtained from the Chartered Institute of Arbitration (7,603 tokens); the Italian WD (WD2) has been downloaded from <www.giust.amm.it> (7,939 tokens). Both WDs were scanned and digitalized in a text format in order to allow a quantitative computation using Wordsmith Tools.²⁸xM. Scott, WordSmith Tools version 4, Oxford, Oxford University Press 2004. Since the size of WD1 and WD2 is similar, figures do not need to be statistically normalised in standardised Type/Token Ratio (TTR).²⁹xThe standardised TTR is a measure of lexical density (by default set at 1,000 words) which corresponds to the ratio of the number of different words (types) to the total number of words (tokens). See S. Hunston, Corpora in Applied Linguistics, Cambridge, Cambridge University Press 2002. The investigation will focus on the analysis of the top ten keywords present in the two WDs, computed with a log likelihood test (p<0.000001)³⁰xThe p value indicates the level of confidence that the results are not due to chance. The smaller the p value, the more likely the presence of the word in one corpus results from the author’s choice to use that word repeatedly. See P. Baker, Using Corpora for Discourse Analysis, London, Continuum 2006, p. 125. and generated against two reference corpora of nine arbitral awards, so as to compare genres with a similar specialised register.³¹xWhen analysing texts belonging to the same genre, I would normally compare the wordlist of one text with the wordlist of the other text. Yet, in this particular case, I cannot proceed in the usual way, as WD1 is in English and WD2 is in Italian. For this reason, I had to create two corpora of, respectively, English and Italian awards against which the keyword lists had been generated. WD1 was compared with an English reference corpus (42,856 words) composed of two awards issued by ABTA, the Association of British Travel Agents, and two awards retrieved from <KluwerArbitration.com>, the world’s leading online resource for international arbitration research. WD2 was compared with an Italian reference corpus (30,428 words) comprising one award released by the Arbitral Chamber of Reggio Emilia, two awards obtained from a chartered arbitrator’s office in Milan, one downloaded from the Italian legal database available at <www.giustamm.it>³²xRetrieved on 1 October 2013., and one provided by the International Arbitration Chamber of the Milan Chamber of Commerce.
  All corpora were read so as to better contextualise the analysis. The quantitative analysis was then followed by a qualitative analysis in order to interpret the findings.

• D. Results

  I. The British Case Study

  The keyword³³xIn corpus linguistics, keywords are statistically unusual words found in the corpus under investigation and do not have any social or cultural values (See Hunston 2002). Keywords are the statistic computation of relative frequencies between corpora, and as such, they highlight the lexical saliency in the corpus under investigation; see Baker 2006, p. 26. list generated against the corpus of English awards can be seen in Table 1:

  Table 1. WD1 keyword list

  N	Keyword	Freq.	%	RC. Freq.	RC. %	Keyness
  1	I	147	1.80	25	0.06	419.58
  2	MEADOWSWEET	43	0.53	0		161.59
  3	BINDWEED	41	0.50	0		154.07
  4	MR	63	0.77	28	0.06	133.78
  5	MY	37	0.45	1		130.10
  6	CONSERVATORY	28	0.34	0		105.18
  7	WE	43	0.53	16	0.04	97.92
  8	POND	23	0.28	0		86.38
  9	KG	22	0.27	0		82.63
  10	STATEMENT	31	0.38	7	0.02	82.47
  11	#	528	6.46	1,865	4.12	79.90
  12	RUPERT	18	0.22	0		67.60
  13	AREA	18	0.22	0		67.60
  14	HE	45	0.55	40	0.09	64.81
  15	EVERGREENSHIRE	17	0.21	0		63.84
  16	HEDGE	17	0.21	0		63.84
  17	AM	16	0.20	0		60.08
  18	BERT	16	0.20	0		60.08
  19	SUPERIOR	16	0.20	0		60.08
  20	VAT	16	0.20	0		60.08
  21	LANDSCAPE	15	0.18	0		56.33
  22	GARDENS	25	0.31	12	0.03	51.25
  23	PAVED	13	0.16	0		48.81
  24	LOCATION	13	0.16	0		48.81
  25	GARDENERS	13	0.16	0		48.81
  26	ROCKERY	12	0.15	0		45.06
  27	STONES	12	0.15	0		45.06
  28	ME	16	0.20	3		44.50
  29	ALL	44	0.54	60	0.13	43.50
  30	FRONT	11	0.13	0		41.30
  31	SHRUBSVILLE	11	0.13	0		41.30
  32	LAUREL	11	0.13	0		41.30
  33	STONE	11	0.13	0		41.30
  34	OCTOBER	11	0.13	0		41.30
  35	CARAVAN	11	0.13	0		41.30
  36	GARDEN	12	0.15	1		38.34
  37	ALICE	10	0.12	0		37.54
  38	BORDER	10	0.12	0		37.54
  39	GET	10	0.12	0		37.54
  40	SOCIETY	17	0.21	7	0.02	37.19
  42	ABOUT	18	0.22	10	0.02	34.41
  43	MEADOWSWEEET	9	0.11	0		33.79
  44	INSTALL	9	0.11	0		33.79
  45	GLASS	9	0.11	0		33.79
  46	COUNTERCLAIM	14	0.17	5	0.01	32.33
  47	COPY	8	0.10	0		30.03
  48	QUOTATION	8	0.10	0		30.03
  49	DEFENCE	13	0.16	5	0.01	29.20
  50	WORK	13	0.16	5	0.01	29.20
  51	WHAT	20	0.24	18	0.04	28.51
  52	ASKED	12	0.15	4		28.39
  53	MATTER	23	0.28	27	0.06	26.34
  54	MONEY	7	0.09	0		26.28
  55	GOT	7	0.09	0		26.28
  56	CAR	7	0.09	0		26.28
  57	KNOW	7	0.09	0		26.28
  58	TENNIS	7	0.09	0		26.28
  59	SHE	7	0.09	0		26.28
  60	NOW	11	0.13	4		25.23
  61	SAY	11	0.13	4		25.23
  62	ITEM	9	0.11	2		24.02

  In the first column, N indicates the number under which the keywords are listed. The second column indicates the keyword, while Freq. shows its frequency. The fourth column shows the percentage of occurrence of the word under investigation in the WD1 corpus, while the fifth and sixth columns indicate the frequency and hit percentage of the same word in the English award reference corpus. In the last column, the keyness, that is, the statistical score assigned to a keyword,³⁴xSee Hunston 2002; and P. Baker, Sociolinguistics and Corpus Linguistics, Edinburgh, Edinburgh University Press 2010. is presented in the last column: the higher the score, the greater the keyness of that keyword.
  As we can see, there is scarcely any occurrence of legal or specialised commercial terminology, the only words belonging to which are VAT (line 20), society (line 40), and defence (line 49). In particular, if we focus on the first ten keywords, the only specialised term found is statement, referring to the declarations made by the claimant, the respondent, and the expert technicians appointed by the arbitrator in the evaluation and judgment of the arbitration. Indeed, the top ten keywords include the two surnames (lines 2 and 3), preceded by Mr (line 4), and the lexemes conservatory, pond, and KG (lines 6, 8, and 9) referring to the physical characteristics of what should have been built and for which payment is deemed to be due, this being the object of the dispute. The most remarkable keywords in this slot seem to be the person pronouns I (line 1) and we (line 7) and the possessive adjective my (line 5). This is interesting since the presence of the first person pronoun and possessive adjective would indicate oral statements rather than written evidence and may indicate an interactive use.

  II. Reporting the Story from the Witnesses’ Perspective: The Use of ‘I’

  There are 147 occurrences of the person pronoun I (Figure 1).

  Concordance list of I
  

  The concordance list of I seems to confirm the idea of an oral statement rather than written evidence. The verbs which most frequently collocate with I are have (13 hits), am (14 hits), had (9 hits), asked (11 hits), and shall (10 hits), as can be seen in Table 2, showing a 5:5 span of the node word I:³⁵xIn Corpus Linguistics, a 5:5 word span of a node word takes into consideration the five words on the left and five words on the right of the word under investigation, in this case I.

  Table 2. Verb collocate patterns

  N	L5	L4	L3	L2	L1	Centre	R1	R2	R3	R4	R5
  1	TO	I	A	THE	THAT	I	AM	A	THE	TO	THE
  2	THE	THE	THE	IN	AND		HAVE	THAT	TO	I	TO
  3	I	OF	TO	ALL	WHEN		ASKED	NOT	MEADOWSWEET	THE	I
  4			I		AS		SHALL	TO	I		A
  5					SO		HAD	IT			AND

  The collocation pattern I am corresponds to an existential expression in only six out of 14 hits, as we can see in excerpts (1)-(4) below. In all the other cases, the verb ‘to be’ is used as an auxiliary verb.

• (1) 6. The hedge. The hedge looked very sparse to me. I am not an expert, however, and I would like to reserve my judgment until I have received Dr Box’s report.

• (2) Statement of Bert Bindweed
  1. I am Bert Bindweed of 12 Laurel Gardens, Shrubsville, Evergreenshire. I am a retired accounting clerk, having worked for 45 years for Book, Ledger and Black, Accountants.

• (3) Statement of Rupert Meadowsweet
  1. I am Rupert Meadowsweet. I am a self-employed landscaping consultant with extensive experience.

• (4) 1. This is my statement made supplementary to my statement made on 18 October 1999.
  2. I resent Meadowsweet’s suggestion that I am a bad payer. I have already made my financial circumstances clear.

While in (1) it is the arbitrator who is speaking and, since s/he acknowledges her/his lack of expertise in technically evaluating the object of the dispute, will pronounce her/his judgment only after receiving the expert’s report, in (2) and (3) we have the respondent’s and claimant’s statements: in both cases, the two people involved introduce themselves in terms of social standing, placing an emphasis on their sound working experience, thus highlighting their credentials.
The forms I have (13 hits) and I had (9 hits) are always used in perfect tenses, mainly to describe what the witnesses have or had done at the time the event under dispute occurred. In the case of I have, in 4 cases out of 13, credentials are established from the viewpoint of the witnesses, as we can see in examples (5) and (6):

• (5) I have been appointed by the Arbitrator in the case of Meadowsweet v. Bindweed to report on a hedge planted at 12 Laurel Gardens, Shrubsville. I have at least 30 years experience of hedges. I have been consultant to many maze structures and am author of the standard text in my field, ‘Hedges’, published by the International Society of Landscape Gardeners.

• (6) In fact, I have worked for over 45 years and have always served with the utmost diligence.

In the case of I asked, the mostly frequently used pattern is that of asking somebody to do something:

• (7) I asked him to advise me on a suitable form of conservatory.

In the collocation pattern I shall, the modal is utilised as a deontic marker only 6 times (lines 6-7; 11; 13-16). In all the other cases, shall is used as a future marker, as we can see seen in Figure 2:

Concordance list of I shall


When shall is used as a modal marking future time, it is always employed with the person pronoun I. A manual extraction of I shall has indeed indicated that the expression is always uttered by the arbitral president, who, clearly, cannot impose on himself/herself an obligation, but is rather giving instructions to the parties about the steps s/he will follow in order to ascertain the truth and issue the arbitral award.

III. Reporting the Story as a Group: The Use of ‘We’

The report of the events from the witnesses’ point of view is in a narrative form set in the past and ‘together’ with other people. The witness is never alone when reporting the story, hence the use of we. The plural person pronoun we occurs 43 times in my corpus. In all these cases, we is used exclusively: what the witnesses are reporting happened to themselves and other people forming a group excluding both the other party involved in the litigation and, obviously, the arbitrator. There is, in other words, a contrast between an unspoken you and we, always represented in the best possible way, as excerpt (8) suggests (my emphasis):

• (8) Bindweed complains about the new pond. The location was given to us in a small sketch pinned to the back door. We could not get hold of Mr and Mrs Bindweed who had, by this time, left for their holiday. The sketch was quite ambiguous, but we reckoned that putting it over on the left hand side would give it more shade. This would be important if the Smiths were to stock it with fish. But, as I say, we thought that if Mr Bindweed was so careless about where it went, it couldn’t be that important.

As we can see, the people involved and identified as we are described as those who cannot be blamed for the decision taken: indeed, they “could not get hold of Mr and Mrs Bindweed [the respondent]” in order to consult him on the question of the position of the pond, from which they inferred that the respondent’s carelessness regarding his instructions was indicative of the non-relevance of the whole matter; “if Mr Bindweed was so careless about where it [the pond] went, it couldn’t be important”.
On the other hand, the respondent uses the pronoun we as an in-group strategy to point out that not only he but also his family are undergoing great emotional stress because of the consequences of the mistakes made by the respondent:

• (9) Following all the difficulties, which I shall describe below, relations between us and the Border-Marshes have become extremely tense. All the neighbours appear to have taken the Border-Marshes’ side in this because of Mr Border-Marsh’s position, no doubt – and we are pretty much ostracised. Alice is heartbroken and we are considering moving when this sorry episode is behind us.

The claimant declares they “are pretty much ostracised”, to such an extent that they “are considering moving”. This may seem interesting, as in an attempt to justify his own actions, the respondent uses emotional reasons to reduce any possible responsibility on his part.
The concordance list of we evidences the collocation pattern we had (4 hits), three examples being found in the respondent’s statement and one in the claimant’s:

• (10) Since we had the work done, Alice has taken up tennis with a club in the neighbouring

• (11) […] Alice got a little too much sun on the last day, but all in all we had a lovely time.

• (12) He asked for the money in used £20 notes. 8. Alice and I went to Majorca. We had a lovely holiday.

• (13) We had my niece Samantha in doing a spot of typing for a weekend pin-money job. She’s studying the history of art and would not know the difference.

As we can see, the use of we had refers to the narrative pattern of story-telling: events are reported in the best possible way so as to achieve an acknowledgment of the truth.

IV. Showing Action: The Use of ‘My’

The possessive adjective my has a frequency of 37 hits, a sample of which is given in Figure 3 below.

Concordance list of my


No concordances have been elaborated by Wordsmith tools. For this reason, I tried to identify who actually uses the possessive. The findings are listed in Table 3:

Table 3. Distribution of my

Arbitrator	Experts	Claimant	Respondent
my main reason for in my opinion my judgment my visit my requests to appeal to clear my name my full and final Award my decision my appointment my colleague my report my report my jurisdiction	my opinion my field	my sympathies my comments my financial situation my statement my statement my formal letter my solicitor my complaint my point my contract my pipe my wife my doubts my rights	my reputation my suppliers my statement my statement my advice my niece my lads my advice

Clearly, the expressions present in Table 3 are taken into consideration without the context in which they occur, but it seems reasonable to say that the adjective my is accompanied by various nouns which can, in some way, identify the role of the person using this possessive adjective. The Arbitrator clearly uses my together with words that pinpoint her/his legal role: reason, opinion, judgment, requests, Award, decision, appointment, report, and jurisdiction. The same can be said for the type of substantives used by the experts appointed by the Arbitrator. The claimant exploits my together with nouns suggesting an apparently denotative reference to his own work procedures, hence the use of my suppliers, my niece (who was working part-time for the claimant), my lads. He is clearly worried about the loss of reputation caused by the adoption of measures taken, this being strongly suggested by the respondent:

• (14) 7. Bindweed is right to say that I was ‘sniffy’ about the conservatory. I don’t like using inferior materials. The seals have all corroded and the panes have frosted. It doesn’t do my reputation any favours. In future I shall not be pressed into choosing inferior products by customers.

Hence, the stress on my advice: “I motored over the next day and gave him the benefit of my advice”, advice not actually followed of course and mentioned twice in the statements issued by the claimant.
As to the respondent, the type of nouns pre-modified by the adjective my are indicative of his social status: my financial situation, my contract, my solicitor, my complaints, my rights. The emotional note is present in his address to my wife and in her wish to allow him to smoke his pipe (my pipe) in the area which was to become the subject of the arbitration procedure. All this is further influenced by the utterance my sympathies found in a document written by the respondent in which he describes the damage resulting from the erroneous work procedure, as excerpt (15) clarifies:

• (15) I understand that he’s put his caravan on the paved area at the front of the house. How ghastly! My sympathies. But apart from the eyesore factor, I guess it’ll be damaging the paving flags.

V. The Italian Case Study

The case of WD2 seems quite different from WD1, as suggested by the type of keywords found in it and listed in Table 4:

Table 4. WD2 keyword list

N	Keyword	Freq.	%	RC. Freq.	RC. %	Keyness
1	AGENTE [agent]	35	0.42	0		114.09
2	PEZZI [parts]	27	0.33	0		87.99
3	SOCIETÀ [company]	51	0.62	22	0.07	86.54
4	MACCHINE [machinery]	25	0.30	0		81.47
5	RICAMBIO [spare part]	25	0.30	0		81.47
6	SIG [Mr]	59	0.72	37	0.11	80.54
7	PROVVIGIONI [commissions]	24	0.29	0		78.21
8	INDENNITÀ [severance pay]	24	0.29	0		78.21
9	È [is]	57	0.69	36	0.11	77.43
10	CLIENTI [customers]	20	0.24	0		65.17
11	L [the]	74	0.90	80	0.24	62.97
12	AGENZIA [agency]	19	0.23	0		61.91
13	N [no.]	63	0.76	62	0.18	59.19
14	DELL [of the]	57	0.69	56	0.17	53.63
15	COMMERCIALE [commercial]	16	0.19	0		52.13
16	DOC [doc.]	33	0.40	18	0.05	49.18
17	COMMISSIONI [commissions]	15	0.18	0		48.87
18	MACCHINARI [machinery]	15	0.18	0		48.87
19	DOVUTE [due to]	17	0.21	1		48.10
20	CLIENTELA [customers]	14	0.17	0		45.61
21	PREPONENTE [principal]	14	0.17	0		45.61
22	ALL [enclosed]	32	0.39	21	0.06	42.28
23	GRUPPO [group]	15	0.18	1		41.82
24	PREAVVISO [notification]	15	0.18	1		41.82
25	VENDITA [sale]	16	0.19	2		40.44
26	CLIENTE [client]	12	0.15	0		39.09
27	FATTURA [invoice]	11	0.13	0		35.83
28	TRATTATIVE [negotiations]	10	0.12	0		32.57
29	LIRE [Italian lire]	10	0.12	0		32.57
30	ESCLUSIVA [exclusive]	12	0.15	1		32.48
31	GENNAIO [January]	12	0.15	1		32.48
32	DI [of]	13	0.16	2		31.44
33	AFFARI [business]	9	0.11	0		29.31
34	RAPPORTI [relationships]	23	0.28	18	0.05	26.57
35	ATTIVITÀ [activity]	15	0.18	6	0.02	26.36
36	CONTROLLO [control]	10	0.12	1		26.31
37	DOCC [documents]	8	0.10	0		26.06
38	VENDITE [sales]	8	0.10	0		26.06
39	CALZE [stockings]	8	0.10	0		26.06

Contrary to WD1, there are hardly any common words. Two words can be singled out as being highly specialised: indennità, ‘severance pay’ (line 8); and preponente, ‘principal’ (line 21), which in Italian are used in their legal context only. Then we have 22 items belonging to the commercial semantic fields: agente, ‘agent’ (line 1); società, ‘company’ (line 3); provvigioni, ‘commissions’ (line 7); clienti, ‘customers’ (line 10); agenzia, ‘agency’ (line 12); commerciale, ‘commercial’ (line 15); doc, ‘documents’ (line 16); commissioni, ‘commissions’ (line 17); clientela, ‘customers’ (line 20); all, ‘enclosed’ (line 22); gruppo, ‘group’ (line 23); preavviso, ‘notification’ (line 24); vendita, ‘sale’ (line 25); cliente, ‘customer’ (line 26); fattura, ‘invoice’ (line 27); trattative, ‘negotiations’ (line 28); esclusiva, ‘exclusive’ (line 30); affari, ‘business’ (line 33); attività, ‘activity (line 35); controllo, ‘control’ (line 36); docc, ‘documents’ (line 37); and vendite, ‘sales’ (line 38). The remaining 15 words belong to everyday language.
Surprisingly, within the first ten keywords, we can find six non-specialised terms. Three seem to refer to the object of arbitration, that is pezzi, ‘parts’ (line 4), which collocate with ricambio, thus giving ‘spare part(s)’ (line 5), and macchine, ‘machinery’ (line 4), to form the collocational pattern pezzi di ricambio delle macchine, meaning ‘machinery spare parts’; the other three belong to general usage: Sig, ‘Mr’ (line 6); the verb è, ‘is’ (line 9); and the definite article L, ‘the’ (line 10). Only agente, ‘agent’ (line 1); società, ‘company’ (line 2); provvigioni, ‘commissions’ (line 8); indennità, ‘benefit’ (line 9); and clienti, ‘customers’ may be considered specialised terms.

VI. Creating the Arbitral Context: Agente (‘Agent’), Pezzi (‘Parts’), Società (‘Company’), Macchine (‘Machinery’), Ricambio (‘Spare Part’), Provvigioni (‘Commissions’), Indennità (‘Severance Pay’), and Clienti (‘Customers’)

The top WD1 keywords are agente (‘agent’, 35 hits), pezzi (‘parts’, 27 hits), società (‘company’, 51 occurrences), macchine (‘machinery’, 25 hits), provvigioni (‘commissions’, 24 hits), ricambio (‘spare part’, 25 hits), indennità (‘severance pay’, 24 occurrences), and clienti (‘customers’, 20 occurrences). Such words are used, apparently, to create the context upon which the whole arbitration proceeding is based. A world-leader company producing stockings and machines used to manufacture stockings was also acting as an agent for rival companies (i.e. the clients) which also sold machines and spare parts used in stocking manufacture, thus not only creating a fictitious competitive market (while actually controlling all its aspects) but also financially damaging real agents working in this sector as well as its own representatives, hence the use of provvigioni (‘commissions’), referring to the financial losses incurred by the real agents, and of indennità (‘severance pay’), the due severance pay requested by the agents and which the firm did not agree with.

VII. The Story from the Perspective of the Witness: The Use of Sig (‘Mr’)

The keyword Sig (‘Mr’, 59 hits)³⁶xFor confidential reasons, the names of the people involved have been deleted. is the title used to refer to the parties involved in the arbitral proceeding, as clearly shown by the concordance list, a sample of which can be seen in Figure 4:

Concordance list of Sig (‘Mr’)


The presence of Sig (‘Mr’) is expressed by the use of the third person singular. Indeed, the documents collected in WD2 present the memory as being reported by somebody else rather than by the witness himself. In other words, those reporting the events in a written form are not the witnesses themselves but rather their legal representatives who have collected the oral evidence and transformed it into a written report. As a matter of fact, the comments of the witnesses themselves are encountered only when the legal representative reproduces verbatim what was actually said during the hearing:

• (16) il sig. …, Presidente del gruppo S ha indicato all’udienza del 14 gennaio 2004: “insoddisfatto del lavoro dì …, mi sono preoccupato di mandare un mio dipendente, che viveva in Francia […]” During the hearing held on 14 January 2004, Mr … President of the company S said: “dissatisfied with Mr…’s work, I took the trouble to send one of my employees who lived in France […]”

A manual extraction of the concordance list of Sig (‘Mr’) has revealed an interesting pattern, according to whether Sig is the subject, the object, or the patient of the proposition and whether the accompanying verb is nominalised or not, as summarised in Table 5, and explained in detail below:

Table 5. Breakdown of the term Sig

Nominalised forms	Comportamento del sig… [Mr …’s behaviour] La gestione della stessa per il tramite del sig… [the company management by Mr …] La presa di posizione palesemente anticommerciale del sig.… comprometteva [Mr …’s clearly non-commercial position compromised] Su richiesta del Direttore il sig… [on Mr …’s request] A causa dell’iniziativa del sig. … [because of Mr …’s initiative] A causa del comportamento del Sig.… [because of Mr …’s behaviour] La risposta del sig.… [Mr …’s reply
Active forms	Subject	X nella persona del suo legale rappresentante sig. … ha proceduto a [X, in the person of Mr. … its legal representative, proceeded to] Il sig… aveva domandato a [Mr … had asked] Il sig… gestiva [Mr … managed] Il sig…. aveva potuto constatare [Mr … had been able to see that] Il sig…ha incontrato [Mr … met] Il sig… decideva [Mr … decided] Il sig… aveva acconsentito affinchè [Mr … had agreed that] Il sig. … indicava che [Mr … stated that] Il sig.… si recò con il sig.… [Mr … went with Mr … to] […] ha dovuto presentarle il sig.… [Mr … had to present them] Il sig.… rinviava [Mr … postponed] Il sig. … consentiva [Mr… agreed] Il sig.… lamentava [Mr…complained] Il sig… avvisava [Mr … warned] Il sig.… avrebbe dovuto tenere informata l’attività [Mr … should have kept a record of the activity] Il sig…ha disatteso [Mr … disregarded] Il sig. … aveva l’autorizzazione [Mr … was authorised] Il sig… ribadiva [Mr … confirmed] Il sig.… applicava prezzi inferiori [Mr … applied lower prices] Il sig.… dichiarava [Mr … declared] Il sig… aveva dichiarato [Mr …had declared] Il sig…si è presentato [Mr …turned up] Il sig… ha sistematicamente cercato di [Mr … systematically tried to] Il sig. … veniva assunto [Mr … was recruited] Il sig. … si rifiutava [Mr … refused] Il sig… lavorava per [Mr … worked for] Il sig… era responsabile [Mr … was responsible] Il sig…[…] conosceva l’amministratore [Mr …[…] knew the manager] Il sig…ha indicato [Mr … stated]
	Object	X aveva domandato al sig. …[X asked Mr …] Il fax […] inviato a [The fax sent to Mr …] X aveva il diritto di accompagnare il sig… [X had the right to accompany Mr …] XY […] inviavano na lettera […] al sig… [[…] XY sent a letter to Mr …[…]] Non conoscendo il sig….[as they did not know Mr …] Sottoporre al sig… un preventive [to provide Mr … with an estimate] Il gruppo … decideva di inviare in Francia il sig…[the group… decided to send Mr … to France]
Passive construction	Agent	Asserito dal sig. … [claimed by Mr …]
	Patient	Sostituito il sig. … con la sig.ra … e il sig…. [Mr … being substituted by Mrs … and Mr …] La presenza del sig. … incaricato da [the presence of Mr …, appointed by]

In the cases in which Sig (‘Mr’) is either the subject, the object, the agent, or the patient of the proposition, we have a neutral report of the events collected in the written memories acquired by the legal representatives of the parties involved in the arbitration proceeding. Whenever a nominalised form (as shown in Table 5), in which the verb is transformed into a noun which becomes the subject of a proposition and in which Sig (‘Mr’), acquires a genitive role, the representation of the event is always negative, with the blame falling on whoever appointed Sig (‘Mr’):

• (17) A causa del comportamento del sig. … nel gestire i rapporti commerciali con …, la … e conseguentemente la S, hanno perso il loro cliente.
  Because of Mr …’s behaviour in the management of the business relations with …, the … [company], and consequently S, lost their customer.

• (18) Il comportamento del sig… ha danneggiato l’immagine …
  Mr …’s behaviour has damaged the image of …

• (19) In particolare, considerando l’acquisizione di … da parte del … agli inizi del 1994 e la condotta tenuta nella gestione della stessa per tramite del sig … si può osservare l’apparente esistenza di una volontà, da parte del … di acquisizione della quota di mercato della … o per lo meno di utilizzarla con logiche e strategie di gruppo, con pregiudizio dei suoi agenti.
  In particular, considering the takeover of … by … in early 1994 and the behaviour in its management through Mr …, one can observe that the apparent existence of …’s will to acquire a market share of…, or at least to use it with group logics and strategies harmful to its agents.

In this way, by placing negativity on the object rather than on the person (thus implying that behaviour caused financial loss, not the person), what is highlighted is not the personal but rather the professional side of the person to be blamed. In other words, the reporter seems to distance herself/himself from any personal evaluation of the people referred to by the term Sig while at the same time objectively demonstrating where the fault lies.

VIII. The Story from the Witnesses’ Perspective: The Use of è (‘Is’)

The verb è (‘is’) occurs 57 times in the corpus and is used in the passive form in 23 out of 57 cases in which the agent is seldom represented. In this way, the rhematic expression,³⁷xSpecialised texts have a textual framework which depends on the sequence of theme, that is, items introducing the topic or theme, and rheme, that is, items containing an expansion of what has been presented in the thematic position. See M.A.K. Halliday, Explorations in the Functions of Language, London, Edward Arnold 1973. which usually is positioned after the theme, is foregrounded as it takes the place of the theme. The patient, therefore, acquires relevance. In addition, with the absence of the agent, responsibility for the action is removed:

• (20) Apparirà dunque chiaramente che tale lettera è stata scritta col solo intento di paventare l’eventualità di un futuro contenzioso e che, dunque, alla stessa non si può attribuire alcun valore.
  It will clearly appear that this letter has been written with the sole purpose of avoiding the possibility of a future litigation proceeding and that, therefore, no value can be attributed to it.

• E. Discussion and Concluding Remarks

  Arbitration is the alternative dispute resolution most widely used to settle commercial disputes across countries. For this reason, UNCITRAL has tried to uniform the various applications of arbitration by offering guidelines which are applied at a local level by different countries. Despite the efforts of UNCITRAL to level out such differences, the way in which the arbitral proceeding takes place differs from country to country. This, for instance, is evident in the two case studies presented in this investigation. When evidence is admitted in written form rather than in an oral hearing, the way in which such evidence is reported varies greatly in intercultural contexts. The social practices involved in the arbitral process seem to be culturally and professionally dependent. Indeed, although the procedure involves commercial issues, the very fact that the final award has the same value as a legal sentence makes these documents appear extremely ‘legal’ in terms of linguistic features.
  During the arbitral procedure, a number of stories and variations of the same story are reported from different perspectives. The arbitrator’s role is that of sorting out and reformulating those stories in a more essential and objective way. Sometimes facts are easily summarised, sometimes they are not. By retelling or rewriting the story, the arbitrator let the parties know that s/he heard what they presented and that s/he can decide about the matter.
  We have seen, for instance, that in the UK the type of written documents collected by the arbitral panel on behalf of the witnesses is expressed in very plain language and where witnesses very informally describe the event as it happened. This may derive from the simplification process influenced by the Plain Language Movement. The use of plain language in the arbitral proceeding is not a synonym of easy understanding: understanding is strictly related to legal comprehension and legal knowledge. Complex legal matters will remain complicated. But the complexity lies rather in the nature of the subject than in language use.
  In the UK case, as we have seen in paragraphs D.I., D.II., D.III., and D.IV. above, the collected documents where the discourse of witnesses is reproduced, although reported by legal representatives, is verbatim: hence the use of first person singular and plural pronouns, as well as the exploitation of the possessive adjective my – which in my corpus are all regarded as keywords.
  The exploitation of the first pronoun I, as we have seen, is mainly found in three cases: (a) in the cluster I am, when either the judge is showing lack of expertise about the topic under discussion and need to appoint an expert to evaluate it or when the people involved in the arbitration process are introducing themselves; (b) in the cluster I have/ I had, when discourse turns to story-telling, that is, when witnesses describe their viewpoint about what has been done when the event under dispute occurred; and (c) in the collocation pattern I shall used by the arbitrator as a marker for future tense.
  The person pronoun we, on the other hand, is employed in story-telling narratives pattern only, especially when witnesses reconstruct their reality in the best possible way so as to allow the arbitrator panel to acknowledge the truth.
  The possessive adjective my, whenever used by the arbitrator, or by the experts nominated by the arbitral panel, points to the identification of their legal role; whenever my is used by the claimant, it suggests a denotative reference to the claimant’s working procedures; if my is used by the respondent, it points to establish his social role.
  The identification of these key points in the English written memories seems to strongly point to the exploitation of plain language in documents which have a legal value.
  On the other hand, the type of language used in the Italian corpus seems to disregard the suggestions provided by the Italian Government concerning the simplification of legal language, as we can see in paragraphs D. V., D.VI., D.VII., and D.VIII. above. The type of keywords found point to a more formal use of language within the written memories under investigation. As seen above, the top keywords found create the context upon which the whole arbitration proceeding is based. Among them, the keyword Sig (‘Mr’) singles out. The keyword, however, appears in the written memory as being reported by somebody else rather than by the witness himself: here the witnesses’ discourse is remoulded into legalese. The title Sig is used to refer to people different from the narrative voice reporting the events from the witnesses’ perspective. In addition, there is a significative pattern in the use of Sig in the written memories. If the keyword Sig is used in the subject, object, agent, or patient roles, the overall sense of the proposition is neutral; whenever Sig is used together with nominalised expressions, that is, whenever the verb is transformed into a noun which becomes the subject of a proposition in which Sig (‘Mr’) acquires a genitive role, the representation of the event is always negative, with the blame falling on whoever appointed Sig (‘Mr’). In other words, in the written evidence of the Italian arbitral proceedings, the type of language used by the witnesses is reformulated by their legal representatives and reported accordingly in legalese, as the Italian professional tradition requires, despite the simplification of bureaucratic language hinted at in paragraph B.III above.
  To date, there seems to be no comprehensive materials available to the arbitral world to suggest ways of clearly and effectively writing written memories for arbitral proceedings. As we can see from the above analyses, although legal documents affecting the rights and obligations of ordinary people should be stated as plainly as possible, this is not always the case. Indeed, the difference in style between the two cases is evident in the Italian case, where plain language, which in a clear, direct, and straightforward way allows readers to concentrate on the message conveyed not on the difficulties created by the use of language, is far from being realised.
  Certainly, the present study has some limitations, mainly the paucity of the corpus, which, as I have hinted at above, is due to issues of confidentiality. It also needs to be triangulated in order to offer some generalisations which here cannot be drawn from the analysis of two case studies. Nevertheless, it may offer some interesting insights, such as, for example, the use of person and possessive adjectives in the case of the English corpus, and, as in the case belonging to the Italian corpus, the syntactical role assigned to the person giving evidence and their role in terms of plain language use. These features have merely been hinted at here and deserve further investigation.

Noten

• 1 See <www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html>, accessed on 1 September 2013.

• 2 See S.M. Maci, ‘Litigation Procedures in Arbitral Practice: A Case of Arbitral Litigation?’, in S. Sarcevic (Ed.), Legal Language in Action: Translation, Terminology, Drafting and Procedural Issues, Zagreb, Kakladini zadov Globus 2009, pp. 393-410; S.M. Maci, ‘The Modus Operandi of Litigation in Arbitration’, in V.K. Bhatia, C. Candlin & M. Maurizio (Eds.), The Discourses of Dispute Resolution, Bern, Peter Lang 2010, pp. 69-83; and S.M. Maci, ‘Arbitration in Italy. Litigation Procedures in Arbitral Practice’, in V.K. Bhatia & P. Evangelisti Allori (Eds.), Discourse Identity in the Professions. Legal, Corporate and Institutional Citizenship, Bern, Peter Lang 2011, pp. 213-237.

• 3 N.C. Ulmer, ‘Language, Truth, and Arbitral Accuracy’, Journal of International Arbitration, Vol. 28, No. 4, 2011, pp. 295-311, at 296.

• 4 F.E. Ziccardi, ‘Enforcement of Arbitral Awards in Hong Kong: Legal and Political Challenges’, in V.K. Bhatia & P. Evangelisti Allori (Eds.), Discourse Identity in the Professions. Legal, Corporate and Institutional Citizenship, Bern, Peter Lang 2011, pp. 63-71, at 66.

• 5 Ibid., p. 64.

• 6 See <www.davidelliott.ca>, accessed on 23 January 2014.

• 7 See, for instance, W. Miles ‘Practical Issues for Appointment of Arbitrators: Lawyer v. Non-Lawyer and Sole Arbitrator v. Panel of Three (or More)’, Journal of International Arbitration, Vol. 20, No. 3, 2003, pp. 219-232; S. Zaiwalla, ‘Challenging Arbitral Awards: Finality Is Good but Justice Is Better’, Journal of International Arbitration, Vol. 20, No. 2, 2003, pp. 199-204; A. Marriott, ‘Less is More: Directing Arbitration Procedures’, Arbitration International, Vol. 16, No. 3, 2004, pp. 261-278; C. Debattista. ‘Drafting Enforceable Arbitration Clauses’, Arbitration International, Vol. 21, No. 2, 2005, pp. 233-240; H. Seriki, ‘Anti-Suit Injunctions and Arbitration: A Final Nail in the Coffin?’, Journal of International Arbitration, Vol. 23, No. 1, 2006, pp. 25-38; G. Aksen, ‘Reflection on International Arbitrator’, Arbitration International, Vol. 23, No. 2, 2007, pp. 255-259; C.N. Brower, ‘W(h)ither International Arbitration? The Goff Lecture 2007’, Arbitration International, Vol. 24, No. 2, 2008, pp. 181-197; M.S. Kurkela et al., ‘Certain Procedural Issues in Arbitrating Competition Cases’, Journal of International Arbitration, Vol. 24, No. 2, 2007, pp. 18-210; G. Nicholas & C. Partasides, ‘LCIA Court Decisions on Challenges to Arbitrators: A Proposal to Publish’, Arbitration International, Vol. 23, No. 1, 2007, pp. 1-41; P.R. Rees, ‘The Conduct of International Awards in England: The Challenge Has Still to Be Met’, Arbitration International, Vol. 23, No. 2, 2007, pp. 505-510; T.H. Webster, ‘Evolving Principles in Enforcing Awards Subject to Annulment Proceedings’, Journal of International Arbitration, Vol. 23, No. 3, 2006, pp. 201-226; I. Thoma, ‘Confidentiality in English Arbitration Law: Myths and Realities about Its Legal Nature’, Journal of International Arbitration, Vol. 25, No. 3, 2008, pp. 299-314; R. Ziadé & C. De Taffin, ‘Fact Witnesses in International Arbitration’, Revue de droit des affaires internationales/International Business Law Journal RDAI./IBLJ, No. 2, 2010, pp. 115-134; M. Scherer, ‘Globalization of International Commercial Arbitration’, Revue des Juristes de SciencesPo, No. 2, 2010, pp. 64-67; M. Schneider, ‘Twenty-Four Theses about Witness Testimony in International Arbitration and Cross-Examination Unbound’, in M. Wirth, C. Rouvinez & J. Knoll (Eds.), Search for Truth in Arbitration: Is Finding the Truth What Dispute Resolution Is about – ASA (Swiss Arbitration Association), Vol. 35, 2011, pp 63-69; and L. Mistelis, ‘General Principles of Law and Transnational Rules in International Arbitration: An English Perspective’, World Arbitration and Mediation Review, Vol. 5, No. 2, 2011, pp. 201-230.

• 8 See, for instance, J.M. Dorney, ‘The Plain Language Movement’, The English Journal, Vol. 77, No. 3, 1988, pp. 49-51; and T. McArthur, ‘Pedigree of Plain English’, English Today, Vol. 7, No. 3, 1991, pp. 13-19.

• 9 R. Flesch, How to Write Plain English: A Book for Lawyers & Consumers, New York, Harper and Row, 1979; R. Wydick, Plain English for Lawyers, Durham, Carolina Academic Press, 1985; M.M. Asprey, Plain Language for Lawyers, Sydney, The Federation Press, 1991. As to Plain Language Movement and Arbitration, the only document found is available at: <www.davidelliott.ca>, accessed on 23 January 2014.

• 10 See V.K. Bhatia, C. Candlin & M. Gotti (Eds.), 2010, The Discourses of Dispute Resolution, Bern, Peter Lang 2011; and V.K. Bhatia, C. Candlin, N. Christopher & M. Gotti (Eds.), Discourse and Practice in International Commercial Arbitration Issues, Challenges and Prospects, London, Ashgate 2012.

• 11 S. Harris, ‘Fragmented Narratives and Multiple Tellers: Witness and Defendant Accounts in Trials’, Discourse Studies, Vol. 3, No. 1, 2001, pp. 53-74; and P. Hobbs, ‘“You Must Say it for Him”: Reformulating a Witness’ Testimony on Cross-Examination at Trial’, Text, Vol. 23, No. 4, 2003, pp. 477-511.

• 12 In particular, see V.K. Bhatia, ‘Witness Examination as Interdiscursive Practice’, World Englishes: Journal of English as an International and Intranational Language, Vol. 30, No. 1, 2011, pp. 106-116; P. Anesa, ‘Spoken Interaction in Arbitration: An Analysis of Italian Arbitration Proceedings’, in V.K. Bhatia, C. Candlin & M. Gotti (Eds.), The Discourses of Dispute Resolution, Bern, Peter Lang 2010, pp. 207-230; and S.M. Maci, ‘Arbitration in Action: The Display of Arbitrators’ Neutrality in Witness Hearings’, in V.K. Bhatia, C. Candlin & M. Gotti (Eds.), Discourse and Practice in International Commercial Arbitration Issues, Challenges and Prospects, London, Ashgate 2012, pp. 225-238.

• 13 G. Garzone, ‘Arbitration Rules across Legal Cultures: an Intercultural Approach’, in V.K. Bhatia, C. Candlin & M. Gotti (Eds.), Legal Discourse in Multilingual and Multicultural Contexts. Arbitration Texts in Europe, Bern, Peter Lang 2003, pp. 177-220, at 212. A casuistic approach assumes that the law develops and acquires further meaning each time that rules are applied to individual cases, rather than being fixed in general doctrines.

• 14 See G. Tessuto, ‘The English 1996 Arbitration Act’, in V.K. Bhatia, C. Candlin & M. Gotti (Eds.), Legal Discourse in Multilingual and Multicultural Contexts. Arbitration Texts in Europe, Bern, Peter Lang 2003, pp. 338-379.

• 15 P.J. Rees, ‘The Conduct of International Awards in England: The Challenge Has Still to Be Met’, Arbitration International, Vol. 23, No. 2, 2007, pp. 505-510, at 505.

• 16 ICC, The International Court of Arbitration Bulletin, Vol. 24, No. 1, 2013.

• 17 Rees 2007, p. 506.

• 18 See D. Cutolo & A. Esposito, ‘The Reform of the Italian Arbitration Law. The Challenging of Arbitrators and the Setting of Time Limits’, Journal of International Arbitration, Vol. 24, No. 1, 2007, pp. 49-62, at 53.

• 19 See <www.camera.it/parlam/leggi/deleghe/06040dl.htm>, accessed on 1 October 2013.

• 20 In theory, any professional can be a member of the Board of Arbitrators of the local Arbitration Chamber. This is possible provided that the would-be arbitrator complies with certain requirements as established by law, such as, for example, having at least three-years’ experience in legal and financial matters and having been appointed as an arbitrator at least three times. In practice, only legal specialists are appointed as arbitrators in an arbitration procedure, whereas all the other experts are appointed as consultants.

• 21 See Bhatia 2011.

• 22 As regards the development of Italian arbitration, see Maci 2009, 2011.

• 23 McArthur 1991, p. 13.

• 24 The aspects connected to the simplification of legal language can be found in Lord Woolf’s Interim Report on Access to Civil Justice (1995) and Final Report on Access to Civil Justice (1996), respectively, available at: <www.dca.gov.uk/civil/interim/woolf.htm> and <www.dca.gov.uk/civil/final/index.htm>, accessed on 1 October 2013.

• 25 R. Vystrčilová, ‘Legal English’, in Acta Universitatis Palackianae Olomucensis Facultas Philosophica, Vol. 73, 2000, pp. 90-96.

• 26 T. De Mauro, Progetto di semplificazione de linguaggio. Manuale di stile, available at: <www.entilocali.provincia.le.it/nuovo/files/Progetto%20di%20semplificazione%20del%20linguaggio.pdf>, accessed on 23 January 2014.

• 27 Direttiva sulla semplificazione del linguaggio dei testi amministrativi, <www.funzionepubblica.it/chiaro/direttiva.pdf>, accessed on 1 October 2013.

• 28 M. Scott, WordSmith Tools version 4, Oxford, Oxford University Press 2004.

• 29 The standardised TTR is a measure of lexical density (by default set at 1,000 words) which corresponds to the ratio of the number of different words (types) to the total number of words (tokens). See S. Hunston, Corpora in Applied Linguistics, Cambridge, Cambridge University Press 2002.

• 30 The p value indicates the level of confidence that the results are not due to chance. The smaller the p value, the more likely the presence of the word in one corpus results from the author’s choice to use that word repeatedly. See P. Baker, Using Corpora for Discourse Analysis, London, Continuum 2006, p. 125.

• 31 When analysing texts belonging to the same genre, I would normally compare the wordlist of one text with the wordlist of the other text. Yet, in this particular case, I cannot proceed in the usual way, as WD1 is in English and WD2 is in Italian. For this reason, I had to create two corpora of, respectively, English and Italian awards against which the keyword lists had been generated.

• 32 Retrieved on 1 October 2013.

• 33 In corpus linguistics, keywords are statistically unusual words found in the corpus under investigation and do not have any social or cultural values (See Hunston 2002). Keywords are the statistic computation of relative frequencies between corpora, and as such, they highlight the lexical saliency in the corpus under investigation; see Baker 2006, p. 26.

• 34 See Hunston 2002; and P. Baker, Sociolinguistics and Corpus Linguistics, Edinburgh, Edinburgh University Press 2010.

• 35 In Corpus Linguistics, a 5:5 word span of a node word takes into consideration the five words on the left and five words on the right of the word under investigation, in this case I.

• 36 For confidential reasons, the names of the people involved have been deleted.

• 37 Specialised texts have a textual framework which depends on the sequence of theme, that is, items introducing the topic or theme, and rheme, that is, items containing an expansion of what has been presented in the thematic position. See M.A.K. Halliday, Explorations in the Functions of Language, London, Edward Arnold 1973.