Originally from The Law and Practice of International Arbitration: Essays in Honor of John Fellas – Preview Page

I. THE IMPACT OF THE TRANSNATIONAL REPRESENTATION  
OF INTERNATIONAL ARBITRATION ON SUBSTANTIVE  
RULES: GENERAL REMARKS 

Although this essay does not address the transnational representation of international commercial arbitration in general, it cannot do without a few remarks regarding this representation, which is often—although not exclusively—associated with Emmanuel Gaillard. This transnational representation, to use Gaillard’s own words, “is based on the notion that the juridicity of arbitration is rooted in a distinct, transnational legal order, not in any national legal order.”2 In this representation, “it is the collective normative activity of states that are prepared to recognize awards that meet certain criteria that gives to any award and the arbitration agreement on which it is based its validity and legitimacy.”3 “[T]his vision recognizes that the validity and legitimacy of international arbitration is rooted in the collectivity of national legal orders, as opposed to one or even several individual national legal systems,”4 and “considers the collective body of norms issued by states to form common rules of arbitration law. Arbitrators, in turn, derive their adjudicative authority from these norms.”5 

As indicated above, this essay will not address this type of transnationalism in detail. This is not, however, because this representation of international arbitration does not have potential implications for the substantive rules applicable to a given contract, including its interpretation on which international commercial arbitrations apparently “most commonly turn,”6 thus highlighting the importance of the applicable interpretive canons.