The Concept of Law in Transnational Arbitral Legal Orders and Some of its Consequences
Journal of International Dispute Settlement, 2011
30 Pages Posted: 10 Apr 2011
Date Written: January 31, 2011
Abstract. If an arbitration system, hypothetically disconnected from states, were to seek to replicate the rule of law beyond the state, in its own transnational order, what would it look like? This question, which seems current given the proliferation of international dispute resolution mechanism and the continuing rise of international arbitration, formed an implicit theme of the scholarship known as the School of Dijon. Some thirty years ago, the School of Dijon asserted the existence of non-national legal systems revolving around arbitration mechanisms, such as the lex mercatoria. Over the years, their claim developed into the argument that these systems’ own legality forms a basis for claims of autonomy from the state, the presence of law dispensing from the need for control by another legal order. This article argues first that this line of arguments is an enthymeme, as the concept of law has been the object of a near wholesale eschewal of definitional attention by the School of Dijon and its kindred theories. The article then maintains that any concept of law used for the aforementioned rhetorical and political purposes ought to include the fundamental principles of the rule of law. It then examines the guise that the rule of law takes when applied to transnational adjudicative normative orders instead of national legal systems.
Keywords: international arbitration, transnational law, concept of law, Lon Fuller, private legal systems, justice, rule of law
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