Emmanuel Gaillard

Aspects philosophiques du droit de l'arbitrage international

Also available as an e-book Le droit de l’arbitrage, plus encore que le droit international prive, se prete a une reflexion de philosophie du droit. Les notions, essentiellement philosophiques, de volonte et de liberte sont au coeur de la matiere. La liberte des parties de preferer aux juridictions etatiques une forme privee de reglement des differends, de choisir leur juge, de forger la procedure qui leur parait la plus appropriee, de determiner les regles de droit applicables au differend, quitte a ce qu’il s’agisse de normes autres que celles d’un systeme juridique donne, la liberte des arbitres de se prononcer sur leur propre competence, de fixer le deroulement de la procedure et, dans le silence des parties, de choisir les normes applicables au fond du litige, soulevent autant de questions de legitimite. Le present ouvrage s’attache a identifier les postulats philosophiques qui sous-tendent la matiere, a montrer leur profonde coherence et les consequences pratiques qui en decoulent dans la resolution des grands contentieux du commerce international.

Transnational Law: A Legal System or a Method of Decision Making?

AFTER SOME 35 years of legal debate and coundess applications of transnational rules by international arbitrators since far before the debate over the concept even began,1 it may seem surprising that general principles of law – also frequently referred to as transnational rules or lex mercatoria 2 – remain such a divisive issue in the world of international arbitration. Publications on the issue are indeed just as passionate as they were when the phenomenon was first identified and labelled as lex mercatoria in the 1960s,3 or when it became more broadly acknowledged in the 1980s.4 A recent and challenging example of this ongoing interest is found in Klaus Peter Bergers contribution to the study of ‘The Creeping Codification of the Lex Mercatoria’ .5 It would be a mistake, however, to consider that the debate has gone around in circles, always dwelling on the same issues. On the contrary, it has been strongly renewed. Initially, the controversy focused on the very existence of rules other than those found in a given legal system, with the potential to be selected by parties and arbitrators. This solution was conceived as an alternative to the traditional choice-of-law approach which purports to identify, in international situations, the most closely related body of domestic rules to be applied to the case at hand. Certain scholars readily recognized and promoted the transnational rules alternative. Others, however, denied its existence; then, when confronted with the reality of its existence, challenged its advisability as an option available to the parties; and, when confronted with the wide acceptance of that option in practice, its availability as a choice open to arbitrators in the absence of any choice of law expressed by the parties. Today, this aspect of the debate has shrunk in scope to that last …

The Consequences Of The Representations Of International Arbitration

The representation of international arbitration has immediate repercussions in situations in which arbitrators must define the restrictions to party autonomy with respect to the determination of the rules applicable to the merits of the dispute. The first representation of international arbitration was adopted by the Geneva Protocol on Arbitration Clauses of September 24, 1923. The second, Westphalian, representation of international arbitration emphasizes the fact that number of States have an equal title to impose their views on the arbitral process, be it as regards the conduct of the arbitration or the solutions reached in relation to the merits of the dispute. The third representation of international arbitration, which accepts the idea of the existence of an arbitral legal order. It addresses the question of possible limitations to party autonomy in the determination of the law applicable to the merits through concept of transnational public policy or truly international public policy.Keywords: international arbitration; international public policy; Westphalian representation