Mark McNeill, Barrister at Bricks Court Chambers and an international arbitration specialist with more than twenty-five years of experience in commercial and investment treaty disputes, joined our International Arbitration Forum today and examined how culture, legal tradition, and unconscious bias shape modern arbitral decision-making. His reflections positioned cultural awareness not as a soft skill but as a structural necessity for fairness in a globalised system of justice.

The Evolution of Arbitration and the Cultural Question

In conversation with Velimir Zivkovic, McNeill traced the evolution of international arbitration from its origins in state-centric diplomacy to its current role as a hybrid mechanism of private justice. Despite its global scope, he argued, arbitration remains deeply human—an intersection of legal culture, psychology, and habit.

The long-standing distinction between common and civil law traditions, he suggested, may be less rigid than often assumed. “We speak of a divide,” McNeill observed, “but what we are really describing is a spectrum of habits—ways of reasoning, arguing, and deciding.” Globalisation and the internationalisation of practice, he noted, have blurred once-clear boundaries, producing a shared procedural language that is both inclusive and inconsistent.

Bias and the Illusion of Objectivity

Moving beyond the formalities of legal systems, McNeill introduced the concept of similarity bias—the subconscious tendency to trust and agree with people who resemble us in background, education, or communication style. While arbitration aspires to neutrality, it remains vulnerable to this human inclination. “Decision-makers give more credibility to people who are like them,” he observed, citing research showing how accent, tone, and perceived familiarity influence trust.

The implications for justice are significant. In a field that prizes impartiality, subtle markers of difference—voice, appearance, or expression—can distort credibility assessments without conscious intent. McNeill noted that while arbitrators seldom see themselves as biased, the homogeneity of the field reinforces the problem. “If everyone on the tribunal looks and sounds the same,” he said, “then even with the best intentions, objectivity becomes fragile.”

Representation and the Diversity Deficit

McNeill illustrated his point with a recurring reality: global disputes are often decided by tribunals that are anything but global. “In cases involving African projects or Asian investors,” he observed, “it is not uncommon for all the decision-makers to come from Europe.” Despite efforts by arbitral institutions to widen representation, data shows that less than two percent of arbitrators in major international cases are from Sub-Saharan Africa.

For McNeill, this imbalance reflects a structural challenge rather than a moral failing. “Diversity in arbitration isn’t just about optics,” he argued. “It’s about legitimacy. If the people most affected by a decision never see themselves represented, the system risks losing trust.” The path forward, he suggested, lies in conscious inclusion—expanding arbitral rosters, encouraging mentorship, and giving new voices procedural visibility.

Cultural Literacy in Advocacy and Decision-Making

The discussion also turned to the practical impact of cultural differences in advocacy and procedure. Moderator Bigovic, drawing on comparative legal training, observed that common and civil law lawyers differ not only in drafting and argumentation but in their understanding of persuasion itself. Civil law advocates tend to rely on written logic and systemic coherence, while common law lawyers privilege oral persuasion and cross-examination.

McNeill agreed that such differences shape hearings in subtle ways. “You can often identify an arbitrator’s background simply by reading the award,” he remarked. “Even when the applicable law is international, the structure and tone reveal their legal DNA.” This interplay between logic and narrative, formality and flexibility, continues to define arbitration’s evolving identity.

Investment Arbitration and Interpretive Heritage

When asked whether legal tradition still affects investment arbitration—where treaties and conventions ostensibly provide uniformity—McNeill was unequivocal. “Of course it does,” he said. “Even under the Vienna Convention, interpretation is filtered through experience. We bring our own habits of reasoning to every text.” He acknowledged critiques of a Western or “developed-world” interpretive bias but cautioned against overgeneralisation. “It’s rarely deliberate,” he noted. “Bias often hides beneath familiarity.”

The persistence of such influence, McNeill argued, demonstrates why cultural literacy must become a core competency for arbitrators. Recognising how instinct, not ideology, shapes decisions allows practitioners to question their assumptions before they harden into patterns.

Awareness as Practice, Not Aspiration

For McNeill, managing bias begins with humility. “The first step is to accept that no one is immune,” he said. “Awareness isn’t an endpoint—it’s a discipline.” He urged institutions and practitioners alike to approach diversity as an operational goal rather than a reputational one. Training, transparent selection processes, and deliberate exposure to varied perspectives, he argued, are essential to rebalancing the field.

He praised initiatives by institutions such as the ICC and SCC, which now publish diversity data and actively support regional arbitrator lists. “These measures are more than symbolic,” he said. “They create new defaults. Over time, what begins as policy becomes culture.”

The Hybrid Future of Arbitration

Despite its imperfections, McNeill remains optimistic about the trajectory of arbitration. “We’re seeing convergence,” he noted. “A generation of practitioners fluent in both legal traditions is emerging—people who instinctively blend analytical precision with procedural flexibility.” Modern arbitration, he suggested, is moving towards a hybrid model—a legal Esperanto shaped by shared practice rather than imposed doctrine.

Yet he warned against complacency. “Convergence shouldn’t mean homogenisation,” he said. “We don’t want to erase diversity; we want to understand it. That’s where arbitration finds its legitimacy.”

Conclusion

McNeill’s vision positions international arbitration not as a battleground between legal systems but as a living experiment in global justice. By embedding cultural literacy and awareness of bias into professional practice, he argued, the field can strengthen both fairness and trust.

In this conception, culture functions as arbitration’s constructive friction—the challenge that sharpens reasoning, fosters inclusion, and keeps the pursuit of neutrality honest. The common–civil law divide may be narrowing, but understanding the cultural forces that persist remains essential to the credibility of arbitration in a truly international era.