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International Arbitration and Global GovernanceContending Theories and Evidence$
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Walter Mattli and Thomas Dietz

Print publication date: 2014

Print ISBN-13: 9780198716723

Published to Oxford Scholarship Online: August 2014

DOI: 10.1093/acprof:oso/9780198716723.001.0001

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The Evolution of International Arbitration: Delegation, Judicialization, Governance

The Evolution of International Arbitration: Delegation, Judicialization, Governance

Chapter:
(p.22) 2 The Evolution of International Arbitration: Delegation, Judicialization, Governance
Source:
International Arbitration and Global Governance
Author(s):

Alec Stone Sweet

Florian Grisel

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198716723.003.0002

International arbitration is rapidly developing into a system of governance for transnational commerce and investment. This chapter analyzes the institutional evolution of the system in light of delegation theory, from which we derive three models: the contractual, the judicial, and the constitutional. In the contractual model, the arbitrator governs only with respect to two contracting parties. In the judicial model, arbitrators not only resolve discreet dyadic disputes, but also act as agents of the greater transnational community, not least, by working to build arbitral institutions. The constitutional model goes further, conceiving the role of arbitrators as, at least in part, agents of a wider international economic legal order. As the system moves away from the contractual model, the chapter encounters increasing hierarchy and organizational complexity. In the constitutionalization model, arbitrators develop and apply an overarching corpus of law, including “transnational public policy.”

Keywords:   international arbitration, delegation, constitutionalization, public policy

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