The Recognition of International Commercial Arbitration as a Transnational Legal Order Defined by the Rule of Law
The thesis is concerned with advancing a theory of international commercial arbitration (ICA). It conceives of ICA as a transnational legal order, comprised of its internal law of procedure. ICA needs to be explained through its inherent procedural attributes because, as a system offering transnational justice, it should be able to be understood in normative terms that relate to its dispute resolution function. In contrast, existing literature focusses on the relationship between ICA and national law and the role of consent.
Adjudication involves a decision-maker having the authority to impose its decision on disputing parties to resolve their legal claims. Another perspective emphasises the role of the parties in presenting reasoned arguments. Under either view, the inherent procedural characteristics of adjudication comprise three core principles derived from the rule of law: the impartiality and independence of arbitrators, the right of each party to be heard, and their right to a reasoned decision. These rule of law-derived ‘principles for just adjudication’ apply to ICA because it is a process of adjudication. Furthermore, a choice by parties of ICA should be viewed as a positive choice of an adjudication procedure that is governed by these rule of law principles.
The rule of law is concerned with the role of law in managing and legitimising the exercise of authority within legal systems. For this reason, analysing ICA in terms of a transnational legal order helps to underpin its claim to legitimate authority through the rule of law. It is possible to regard consent and the principles for just adjudication as key elements of a transnational legal order of ICA, either as norms establishing legality, or for the purpose of identifying the members of the system’s officials, or social group or subjects, or both. In these respects, the rule of law may have a fundamental role in the recognition of the legal order and in creating the theatre in which it may operate.