Thomas Carbonneau is the Samuel P. Orlando Distinguished Professor of Law at Penn State's Dickinson School of Law. Professor Carbonneau is commonly regarded as one of the world's leading experts on domestic and international arbitration. He serves on the editorial board of La Revue de L'Arbitrage and is the author of ten highly acclaimed books and 75 scholarly and professional articles on arbitration. Professor Carbonneau was formerly the Moise S. Steeg Jr. Professor of International Law at Tulane University School of Law.
This article examines the mixed effect of arbitration upon the generation of international law norms; in particular, how arbitration can generate private law norms so effectively and yet still face strong resistance in public international law processes and controversies. The work of arbitration for international commercial litigation has been nothing less than spectacular.1 In both the private international and domestic civil contexts, arbitration has provided viable remedial solutions and functional adjudication when the law was either nonexistent or incapacitated.2 It has supplied a workable and adaptable trial system, which—on the international side—could also generate substantive legal norms.3 Arbitration thereby has redressed the failings of sovereign politics and adversarial justice,4 achieving its greatest success in circumstances dominated by a commercial ethos.