Customary International Arbitration Law
24(2) American Review of International Arbitration 245
Posted: 29 Aug 2017
Date Written: 2013
This article describes a “Framework of Identification” for determining the content of customary international arbitration law. Like Emmanuel Gaillard's theory of an international arbitral legal order, the article's conceptual provenance reflects the influence of Santi Romano, but the focus is on providing a workable, practical framework for determining the content of customary international arbitration law. The Framework of Identification draws heavily upon the analysis of John Finnis of the development of custom in public international law. The Framework has certain affinities with public international law theories of transnational legal process and legal pluralism, but focuses on the development of norms in the private international law of arbitration. In this respect, one can also view the Framework as contributing to the view of international arbitration as a form of transnational private governance. Equally, it places the phenomenon of international arbitration in the context of a larger philosophical conversation about the sources and nature of legal obligation.
Keywords: international arbitration, custom, natural law
Suggested Citation: Suggested Citation