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Dec 01, 2009

Three Philosophies of International Arbitration

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"Three Philosophies of International Arbitration", in Contemporary Issues in International Arbitration and Mediation, The Fordham Papers (Arthur W. Rovine Ed.), Martinus Nijhoff Publishers, 305 (2009)

"It may seem counterintuitive to combine in the same title the notion of philosophy and that of international arbitration. International arbitration is about settling disputes between businesses, occasionally between businesses and States or State entities. International arbitration itself is a business, possibly too much so. Arbitration is often about money. Philosophy, on the other hand, purports to offer an understanding of the world; in the field of law, an understanding of the origin and nature of the norms, and the manner in which they interact within a legal system. It connotes the disinterested nature of a purely contemplative activity. How can one possibly talk about philosophy when dealing with international arbitration? [...]

In my opinion, there are three competing philosophies, three representations of international arbitration. The first is the one equating the arbitrator with the local judge of the place of arbitration. [...] The second representation has operated a Copernician revolution vis-a-vis the first, in that it looks at the whole arbitral process through the end result, namely the fact that the award will be recognized in a number of countries if it meets the prescribed conditions in those countries. [...]
The third representation contemplates the States collectively, not individually."

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Authors and Contributors

Emmanuel Gaillard

Partner

International Arbitration

+33 1 53 89 70 00

+33 1 53 89 70 00

Paris