Program Outline
The Asia Pacific Dispute Resolution project supports research, analysis and policy proposals aimed at building knowledge on how disputes are resolved across different cultures, including but not limited to mediation, arbitration, and court adjudication. Drawing expertise from scholarly researchers and knowledgeable practitioners, the APDR project is organized into three substantive research groups; (1) international trade (2) human rights and (3) cross-cultural disputes resolution, and three county teams; (1) Canada, (2) China, and (3) Japan. These country teams will provide the local context to a range of research questions and equally important, to the analysis of our findings. This intersecting lattice of area expertise and cultural knowledge forms the basis of our research approach.
Theoretical Concepts
As globalization has brought on more frequent and intimate interaction among states and societies of the Asia-Pacific region, cross-cultural dispute resolution has taken on increased importance. Resolving cross-cultural disputes requires understanding of the interplay between contested standards of conduct associated with different cultural communities, as well as an appreciation of power relations that often determine processes and outcomes of dispute resolution. Power imbalances between developed and developing states and economies have strengthened the authority of rules of governance associated with North America and Europe. Processes involving China's accession to the WTO, APEC trade liberalization, and periodic human rights reporting, for example, illustrate the capacity of liberal industrial states to disseminate their preferred rules of governance around the world. However, many states and societies of Asia have resisted uncritical acceptance of liberal models for regulating trade and human rights, as indicated by the mixed record of compliance with principles of trade liberalization associated with APEC and the WTO and by tensions over policies and doctrines associated with the Bangkok and Vienna declarations on human rights. Differing approaches to trade and human rights are manifested in part through disputes involving states, business actors, civil society organizations and individuals across the Asia-Pacific region. Trade disputes have challenged cooperative economic relations between Canada, Japan, and China, while human rights disputes are also evident, over such issues as annual human rights reports, NGO challenges to infrastructure projects, and individual human rights claims within particular countries. Preventing these kinds of disputes where possible and managing them where necessary will require approaches to dispute resolution that accommodate the needs and expectations of different cultures.
This proposed project proceeds from assumptions about the importance of cultural norms in influencing behavior (Etzioni, Kelsen). Cultural norms are reflected in rules, including formal laws and regulations and informal procedures and practices. The distinction between rules and the cultural norms they represent becomes especially important when rules particular to one cultural group are used by another, without a corresponding assimilation of underlying norms. This phenomenon is reflected in current conditions of globalization, as liberal rules of governance generally associated with the Europe and North America are disseminated to other areas, but little attention is given to questions about local acceptance of the norms on which these rules are based. International trade and human rights are matters of special importance, where concerns over compliance with international standards often reflect misplaced expectations about the enforceability of rules without agreement on underlying norms. These issues often are brought to the fore in dispute resolution, where substantive and procedural standards of conduct are contested and where power relations often determine processes and outcomes. (Eisenberg, Minow). In the context of globalization, economic and political power has allowed particular practice rules associated with liberal democratic capitalism to be imposed on societies outside the European tradition, but has had less effect in displacing local cultural norms. Disputes over compliance with trade treaties on issues such as subsidies or human rights agreements on questions about employment standards, for example, often reflect the absence of normative consensus despite the sharing of particular practice rules. Under these circumstances, disputes emerge over the meaning of practice rules and the processes and results of dispute resolution proceedings are challenged even when they are grounded in agreed rules. Thus, effective cross-cultural dispute resolution, whether through mediation, arbitration, or court adjudication, requires building understanding of the disjunction between conformity in shared rules and diversity in underlying norms, and developing effective responsive measures. This is the challenge to be addressed through this project.
Building on work by Pitman Potter, Principal Investigator, and others on dispute resolution in cross-cultural contexts (Abel 1973, Laurie, Potter & Donnelly, Zhang), this project will support new and innovative approaches to research and analysis through its emphasis on the process of “selective adaptation” and related concepts of perception, complementarity and legitimacy. Selective adaptation describes a process by which practices and norms are exchanged across cultural boundaries (Potter 2001, Cf. Donald Kennedy). Selective adaptation is made possible by ways in which governments and elites express their own normative preferences in the course of interpretation and application of practice rules (Balbus). Whether in response to IMF funding requirements (Lane & Phillips), US nuclear security mandates (Eberstadt), or UN human rights requirements (Kent, 1999), states and societies of the Asia-Pacific engage in selective adaptation as a coping strategy for balancing local needs with requirements of compliance with practice rules imposed from outside, by interpreting these non-local rules in terms of local norms. Dominant powers also engage in selective adaptation, as illustrated by the increased reliance in North America on mediation and other consensus-based dispute resolution systems derived in part from collectivist traditions of Asia (LeBaron 2002), although this tends to be more voluntaristic rather than a reaction to imposed rules. Selective adaptation also operates within societies as different groups interact with and respond to dominant discourses (Etzioni). While selective adaptation explains much about the general conditions for exchange of practice rule and norms between cultural communities, more work is needed to confirm the operational details of selective adaptation, identify the internal components, and explain the implications for cross-cultural dispute resolution.
