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Article
Arbitral Law-Making
Michigan Journal of International Law
  • Thomas E. Carbonneau, Penn State Law
Document Type
Article
Publication Date
1-1-2004
Abstract
Diversity--of a cultural, economic, religious, and political kind—exists not only among nation-states and in the sources and interpretation of international law, but also among the group of commentators who study the interactions of transborder actors and institutions. For example, sociologists interested in the global community seek to identify emerging entities and activities and to elaborate conceptual models that explain the new differentiations within the traditional pattern. Some of them have a mounting interest in the fashioning of transborder commercial justice by international arbitrators and private arbitral institutions. Who are these new players? How did they acquire their mandate? Further, how effective are they in performing their mission? In addition to sociologists and international relations scholars, lawyers also annotate transborder events and examine the significance of sovereign relationships. Public international lawyers, in fact, are preoccupied with political conduct among States. Some public internationalists are particularly interested in the exchanges that occur among sovereigns within international organizations. For many of them, legal doctrine does not stand on its own. The true purpose of legal regulation is to integrate the dynamics of global governmental relations into the framework of established public agencies. Private international lawyers embrace less lofty ambitions: their task is to protect clients from the risks of the international marketplace. Although sovereignty remains a factor in this setting, it is not a black hole that eats up every morsel of legal civilization. The debate surrounding competing political positions-e.g., on the costs of disarmament, on environmental policy, and on the disproportionate use of resources by wealthy countries-is substantially attenuated and can even be ignored in the swirl of "boundaryless transactions." Events do not need to be "spun"' to encourage perceptions favorable to national self-interest. The privatistes aim to make global commercial transactions possible by providing for the international protection of private legal rights. The globalization of commerce, seen by most nationstates as beneficial to their self-interest, cannot take place without a workable system of transborder adjudication.
Citation Information
Thomas E. Carbonneau. "Arbitral Law-Making" Michigan Journal of International Law Vol. 23 (2004) p. 1183
Available at: http://works.bepress.com/thomas-carbonneau/13/