The Process of Harmonisation of the law of international commercial arbitration: Drafting and diffusion of uniform norms

This work purports to analyse the process of the harmonisation of the law of international commercial arbitration with particular reference to the drafting and diffusion of uniform rules. In the first chapter a theoretical framework is developed to investigate the effects of globalisation on law and international relations, introducing the concepts of legitimacy of global governance, epistemic communities and norm diffusion as elaborated in International Relations theory. The second chapter analyses the debate on the harmonisation of international trade law and outlines the main techniques, means and actors of this process, with particular reference to their membership, statutory purposes and most of all the decision-making methods followed in the production of uniform rules. The following chapters analyse the travaux préparatoires of the main harmonisation tools of the law of international commercial arbitration, namely the UNCITRAL Model Law on International Commercial Arbitration, the UNIDROIT Principles of International Commercial Contracts, and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, with a view to assessing their impact on national jurisdictions, national courts and arbitral tribunals. The main findings of this survey are twofold. First, a common decision-making method within the “formulating agencies†in charge of drafting the uniform rules of the law of international commercial arbitration is emerging. Although formally inter-governmental bodies made up of state representatives, these formulating agencies do not follow the traditional decision-making process founded on bargaining and unanimity (or majority) voting, which is typical of international law- making. Their membership resembles more that of an “epistemic community†, i.e. a group of experts who are constantly attempting to reach a consensus rather than a majority or unanimity and whose interests, proposals and positions are not fixed, but are susceptible to being changed whenever a better argument founded on reasonable grounds is put forward. Second, these uniform rules are characterised by a strong level of hybridation, in which the distinction between hard and soft law tends to blur. Accordingly, the increasing level of harmonisation of the law of international commercial arbitration can be read as a process leading to the creation of a hybrid legal order, combining both a state-centric system (organized essentially around the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards and the various national arbitration laws) and a multi-centric system made up of a complex network of private contracts, non-national norms elaborated by formulating agencies and international arbitral institutions, as well as customs and general principles of law. Finally, this work briefly examines the issue of the legitimacy of this hybrid legal order by applying the two different approaches to legitimacy outlined in the first chapter. It is argued that accountability of international commercial arbitration is ensured through the instrument of delegation: the increasing use of soft law and the wide scope of party autonomy in arbitration are indicators that states are delegating to international organisations and non-state actors the task of determining the most appropriate standards for the conduct of arbitration, but at the same time they continue to play an important supportive and supervisory function at various moments in the arbitration process. Moreover, the involvement of a wide range of outside experts and stakeholders not belonging to state bureaucracy in the drafting process of the main formulating agencies is an attempt to strengthen the legitimacy of their harmonisation tools and facilitate their reception in practice. Thirdly, the particular decision-making method followed by these formulating agencies, largely based on consensus and in which the various stakeholders’ interests are taken into consideration, allows the adoption of widely acceptable solutions founded on rational arguments and therefore represents an example of legitimate governance in habermasian terms.