Conceptions of Legitimacy of International Arbitration

Abstract

The concept of legitimacy is becoming the prevailing standard against which to measure the acceptability of international arbitration to a variety of groups, including the parties to a concrete arbitration proceeding, actual and potential users of arbitration more generally, the constituency of a specific country affected by arbitration proceedings, and the international community (or global society) as a whole. This paper analyses how the concept of legitimacy is used inside and outside the international arbitration community. It argues that the increasing use of the concept is closely connected to the transformation of international arbitration into a mechanism of transnational governance and the challenges to constitutional values that go along with it, such as democracy, the rule of law, and human rights. At the same time, the conception of legitimacy used in the discourse inside the international arbitration community does not sufficiently reflect the governance function of international arbitration. Instead, it is narrowly tailored towards the function performed by international arbitration for the disputing parties. In order to remedy this shortcoming, the paper suggests that a multidimensional concept of legitimacy that encompasses not only ‘party legitimacy’ but also ‘community legitimacy’, ‘national legitimacy’, and ‘global legitimacy’ should be adopted.

Keywords: Legitimacy, international arbitration, arbitration as governance, transnational authority, constitutional challenge, multidimensial concept of legitimacy

JEL Classification: K33