Mitigating conflict in arbitration clauses through language.

Abstract

The aim of this paper is to analyze how language is used to sustain cooperation and mitigate the illocutionary force of conflicting assertions in contractual arbitration clauses. On the one hand, ‘cooperative’ terms and expressions are manipulated in an attempt to reinforce explicitly the binding commitment between the parties to submit to arbitration in case of conflict. On the other hand, other linguistic strategies are used to somewhat attenuate the responsibility of the party that initiates the conflict. The main theoretical framework of the analysis is Goffman’s (1967) theory of oral interaction ritual and Brown and Levinson’s politeness theory (1987) which have been adapted to the written medium of contracts. The data of the investigation is drawn from a compilation of genuine international petroleum agreements in English. We claim that arbitration clauses constitute subtypes of social interaction inserted in contracts whereby the parties are engaged in a 4-Move interchange to regulate the flow of events until the successful completion of the arbitral process. For LSP practice, the aim of this paper is twofold: to make legal professionals aware of the socio-interactional nature of arbitration clauses and of the conventional use of linguistic strategies for their writing and for a successful negotiation of conflicts. Moreover, the LSP researcher may find inspiration to investigate further cross-linguistic evidence of (meta) communicative strategies in contracts under different legal systems.