International Arbitration - Dissertation Example

International Arbitration The multifarious problems relating to interim measures with reference to international arbitration being addressed in the dissertation makes it an indispensable prerequisite to inquire into the broader aspects of research methodology, which are of diverse proportion. Many law dissertations rely mainly upon cases, statutes and academic commentary. However, to inquire, to arrive at the ultimate result and to redress the problem being addressed, certain pre-existing research philosophy in addition to adoption of the correct research strategy and research methodology was taken the aid of, for successful completion of the research. The answer to the problems in this research would be best found, on the implementation and adoption of the interpretivism philosophy and approach to research. The study of interim measures in international arbitration is rather descriptive than quantifiable. By its nature, interpretivism promotes the value of qualitative data in pursuit of knowledge.1 This research philosophy is mostly concerned with the uniqueness of a particular situation contributing to the pursuit of contextual depth.2 The qualitative research method has its unique requisites so far its reliability, validity and generalizability are concerned. Reliability refers to the consistency and stability of a measure. If the research is looked into from an interpretive perspective, Eisenhardt suggested that the researcher started with a broad research question, establish a systematic data collection and ensure case access.3 The same was followed in this research. The theories and principles of Qualitative research were adopted for conducting the literature review relating to interim measures in the pre-existing body of international arbitration law, which may be classified into two broad categories. Among the two broad categories of qualitative research i.e. qualitative doctrinal research and non-doctrinal qualitative research, which may further be classified into descriptive and evaluative, the Qualitative doctrinal methodology was implemented to conduct the literature review and to reach the final conclusions.4 According to Fink the requirements for a thorough literature review consists of the following: selecting research questions, selecting bibliographic or article databases, choosing search terms, applying practical screening criteria, applying methodological screening criteria, Doing the review and synthesizing the results.5 The same approach had been taken to conduct the research. The first requirement according to Fink is to select the research questions. In doctrinal research, the questions are found from a search for the law which is applicable in a given set circumstances.6 In the present case, the questions that were required to be answered were: who (arbitrators or tribunals or both of them) can adjudge to interim measures? What kind of interim measures is valid at international arbitration? By whom and how adjudged interim measures applied, how should be their performance?7 A research in the existing corpus of international arbitration law had been undertaken to find a suitable answer to the aforesaid questions. The second requirement consisted of selecting bibliographical and article databases. The best one for this purpose was the Milli Kutuphane, the official website of the national library of Turkey, which consists of one of the richest collections of Turkish sources and sources around the world. Some problems were faced in providing Turkish sources and endeavor was made to find Turkish sources in English. The only Turkish sources were written by Yeslirmak. As such, the Turkish sources were avoided so far practicable. The third requisite in literature review according to Fink (supra) is choosing search terms. Both Boolean search and browsing have been used to find out the sources essential for this research.8 Search for the names of some of the leading authors in the field of international arbitration and some authors who were known before, had been conducted, which gave valuable sources. The fourth and fifth requisites were the application of practical screening criteria and applying methodological screening criteria, which is to find out what is important for the research and what sources may be irrelevant. In order to determine whether a source is dependable and reliable, certain considerations had to be made, which were the determination of the following questions: does the source cite primary sources? What can be told about the author? How old are the sources?9 In addition to these questions, it was important to determine whether particular sources answer the questions, which the dissertation seeks to present through this research. The literature review procedure of Fink ends with the sixth and seventh requisites which were reviewing and synthesizing the results. The primary sources which state the law and the secondary sources which analyze the law had to be reviewed and synthesized. Authorities are summarised and acknowledged and an overall principle is derived from the survey.10 In the present research, for instance, sources like, Lloyd’s Law Reports & Arbitration Act 1996, London (Infra) which served as primary sources and numerous secondary sources like commentary on the Modern law, International Handbook of Commercial Arbitration, The Arbitration Agreement and its Recognition by the Courts, International Arbitration in a Changing World (Infra) have been summarised and principles were derived from the summarization. Needless to say that research texts or examples of research did make a considerable influence to accept the current methodology for doing the research. Despite the absence of direct application of Finks procedure for conducting research in research texts, a good number of instances present, portray the application and usage of qualitative research methodology. The dissertation produced by Sandeep Adhipathi influenced me to a considerable extent to undergo a qualitative research.11 The application of Finks principles to conduct this research is rather peculiar to this dissertation and a unique approach is taken to complete this research. As stated by Guba and Lincoln, trustworthiness or in other words validity and reliability in a qualitative study can be determined by four indicators, which are, credibility, transferability, dependability, and confirmability.12 After going through the application and due inhabitance of the indicators, in the essence of the dissertation, an evaluation of the methodology adopted may be made. Credibility involves that the results of the research are credible or believable from the perspective of the participants.13 The results found should be believable so long as they are based on reliable evidence. Transferability involves the extent to which the results of the qualitative research can be transferred to other contexts or settings.14 Having a look at the present research, the extensive and thorough description of the procedure, makes it viable for any other researcher in law to follow and implement the same procedure in their work. According to Trochim and Donnelly, dependability in research means, whether we would obtain the same result looking at the same thing twice. 15The primary and secondary sources used in this research are dependable in the sense that they will be found to be true unless the law in the international footing does remain the same or in other words at least until the time any amendment does not take place. The final criteria for adjudging the reliability of research is confirmability, which indicates the degree to which the results of the research can be confirmed by the others.16 Having a glance at the law relating to interim measures in international arbitration, it will be perceived that it is not something which is static, and always changing. For instance, the revised United Nation Commission on International Trade Law (UNICITRAL) brought new changes to international arbitration law. This gives the result of the research confirmability, so long as the arbitration law does not change. This is also a limitation on the finding made through this research. Some other limitations were the threat to the trustworthiness of the research.17 The threat appears from a few sources, due to the fact that it is old and some sources were found to be incomplete. For example, new case laws may have been passed for some old cases used in this research, like, Island Creek Coal Sales Co. v. City of Gainesville, Florida, 729 F.2d 1046 (6th Cir. 1984). Precluding this few limitation the research is fully dependable. REFERENCING KAPLAN B KAPLAN, B. & MAXWELL, J.A., Qualitative research method for evaluating computer information systems, 1994. MYERS, M.D., Qualitative research in information systems, MIS quarterly, 1997. EISENHARDT, K.M. Building theories from case study research, Academy of Management Review, Vol. 14. No. 4,1989. Mc CONVILLE, M. & HONG CHUI, W. Research methods for law, Edinburgh, 2007. ELIAS, S. Legal research: how to find & understand the law, 2009. KUMAR, R. Research Methodology: A step-by-Step Guide for Beginners, Sage, 2011. BOWEN, G.A., Preparing a Qualitative Research-Based Methodology: Lessons Learned, The Qualitative Report, Vol.10. No.2, 2005. ADHIPATHI. S. Interim Measures in International Commercial Arbitration Past, Present and Future, 2003. Read More