Academics increasingly characterize international commercial arbitration (ICA) as a form of global governance. However, this literature rarely discusses why ICA should come to provide truly global governance, as opposed to being simply an atomized form of governance derivative of national court litigation — more neutral, more widely enforceable, perhaps faster and cheaper, but essentially the same adjudicative exercise in a different venue. For ICA to constitute global governance, as opposed to merely disconnected resolutions of individual cross-border disputes according to national laws, there are at least two prerequisites. First, legal rules must be formulated at the global level and apply regardless of the nationality and public or private status of the parties. Second, there must be a functional consistency in arbitral decision-making; a consistent adjudicative approach, such that “like cases are treated alike,” is a hallmark of the rule of law. In the radically decentralized ICA system, where there is no central administrative body, no appellate hierarchy, and no common sets of procedural or substantive rules, consistency appears to be a tall order. Can there be global governance without a global governor?
This book chapter argues that the key to understanding ICA’s emergence as global governance is a legal culture specific to the international arbitration community. This culture instills into international arbitration practitioners a normative commitment to establishing international arbitration as a global system of governance for cross-border commercial relationships. It also provides the decisional stability necessary for arbitration to come into its own as a form of legal governance promoting the rule of law. The chapter evaluates “culture” as the basis for a theory of ICA-as-governance, then explains how a common culture can emerge within a heterogeneous, transnational community. Next, it describes the aspects of international arbitration culture that are most relevant to ICA’s development as a form of global governance. In particular, it argues that arbitrators are driven to establish ICA as an autonomous, global system of governance by a shared dedication to internationalism for its own sake and also by a belief that internationalism serves the interests of commercial parties.
Available at: http://works.bepress.com/joshua_karton/11/