Constructing a Transatlantic Marketplace of Disputes on the Symbolic Foundations of International Justice
Forthcoming in: Gregoire Mallard and Jerome Sgard, eds., Contracting Beyond Boundaries: Private Regulation of International Trade and Finance in the Twentieth Century, Cambridge University Press
21 Pages Posted: 17 Jan 2015 Last revised: 23 Mar 2016
Date Written: January 14, 2015
This chapter revisits earlier work by the authors on international commercial arbitration. Drawing on new historical research, it suggests that the enduring success and legitimacy of the International Chamber of Commerce and international commercial arbitration relates to the type of alliances that European professors early in the twentieth century built with American lawyers -- who themselves had built strong connections with the U.S. state and with major commercial interests. The article first presents in broad terms the strategies of internationalization (including the import and export of norms and institutions) that elite corporate lawyers sought in order to build their position through the accumulation of international legal capital built in alliance with European law professors. These strategies of internationalization played a decisive role in building international justice as a hybrid system between common and civil law around a core of legal scholars/diplomats including learned Queens Counsel and continental law professors. Second, the chapter examines how the ICC Court of International Commercial Arbitration was established in the shadow of the Permanent Court of International Justice by borrowing its public visibility and the academic legitimacy of international law. The European professors who benefitted from the establishment of the Permanent Court and related institutions in The Hague were initially relatively peripheral to the ICC, because the ICC itself was relatively marginal in the interwar period. Yet a few of them extended their academic interest to issues of private law and international disputes. Third, when European law professors were given the opportunity to intervene in commercial disputes involving oil companies, after the tide of nationalistic fights over the appropriation of profits of the oil industry, they could use the value of the symbolic foundations of international justice, as well as their early academic investment, reinvigorated through a small diaspora of continental law professors with links to both the ICC and the American Arbitration Association, such as Martin Domke. Serving as arbitrators and scholars, they could apply and codify their doctrines and gain the recognition of international commercial arbitration as quasi-autonomous from economic and political interests.
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