Partner Emmanuel Gaillard (Paris-International Arbitration) has published an article, "International Arbitration as a Transnational System of Justice," in Arbitration - The Next Fifty Years, ICCA Congress Series No. 16, 2012, pp.66-73.
International arbitration is increasingly recognized as a transnational system of justice, if not a genuinely autonomous legal order, sometimes labeled as the arbitral legal order. This evolution, however, continues to generate robust controversies on the extent of autonomy of international arbitration from national legal systems and the role, if any, that the seat of the arbitration should have over the arbitral process.
This pervasive debate suggests that the longstanding relationship between autonomy and international arbitration is still ill-defined to some extent. It also demonstrates that considerations of autonomy, without more, cannot provide answers to certain more fundamental and practical questions ubiquitous in international arbitration, such as questions related to applicable law, procedure and the enforcement of awards.
A more fundamental approach is to examine the reasons for the sharp divergence in views between those who root international arbitration in a national legal system and those who recognize the transnational character of the process. These differences cannot be explained solely by considerations of autonomy, or by focusing on isolated practical aspects of international arbitration. Instead , one must consider the source (or sources) of validity and legitimacy of the arbitral process and the ensuing award. In this respect, three visions of international arbitration appear to constitute a dividing line, each having a distinct theoretical ground as well as entailing extremely concrete practical consequences. These visions will be described below, before further consideration is given to the role of the 1958 New York Convention in this debate.