Competition and Cooperation in International Commercial Arbitration: The Birth of a Transnational Legal Profession

By Grisel, Florian | Law & Society Review, December 1, 2017 | Go to article overview

Competition and Cooperation in International Commercial Arbitration: The Birth of a Transnational Legal Profession


Grisel, Florian, Law & Society Review


For in the meantime the tightrope walker had begun his performance: he had come out of a small door and was walking along the rope, which was stretched between two towers so that it hung over the people and the marketplace. When he was just halfway across, the small door opened once again, and out jumped a colorful, buffoonish fellow who quickly followed after him. 'Move it, lamefoot,' he cried in a terrible voice, 'get going, lazybones, chiseler, whey-face! So I don' tickle your heel with my foot! What do you think you're doing here between these towers? Back in the tower is where you belong, behind bars, you who bar the way of one who is your better!'

Friedrich Nietzsche, Thus Spoke Zarathustra1

International commercial arbitration (ICA) has become the preferred method for the settlement of important transnational business disputes over the course of the last half century,2 displacing domestic courts (Stone Sweet and Grisel 2017). A network of arbitral institutions, the International Chamber of Commerce (ICC) being the most important, processes the bulk of these disputes, the stakes of which are enormous. A recent survey of the leading law firms in the field reported information on 109 active ICA cases in which at least $500 million was "in controversy," including fiftyeight cases in which claims totaled more than $1 billion, and nine with claims over $9 billion.3 The actors who manage the system, typically leading arbitrators themselves, once worked in relative obscurity. Today, they publish scholarship,4 organize conferences,5 and build new organizational forms for promoting arbitration,6 activities that are now accessible to the public. As the importance of ICA has grown so has interest in the sociological profile of arbitrators, and in how they succeeded in constructing ICA as a private system of transnational governance.

The pioneering monograph by Yves Dezalay and Bryant G. Garth (1996), Dealing in Virtue,7 has dominated this topic for more than 20 years. Dezalay and Garth tracked the evolution of ICA between the 1980s and the 1990s, focusing on the competition between two groups of "merchants of law" which, they claimed, structured the emergence of a new "field" (Dezalay and Garth 1996: 57). The first group of incumbents was composed of "grand old men," a category dominated by "very senior European professors imbued with the traditional values of the European legal elites" (Dezalay and Garth 1996: 34). The second group of challengers was made of "young technocrats" who acquired their legitimacy as litigators in Anglo-American law firms (Dezalay and Garth 1996: 36). According to the authors, each of these groups drew their legitimacy from specific systems: the law schools of the civil law world on the one hand, and the law firms of the common law world on the other hand (Dezalay and Garth 1996: 33-62). The divides between these two groups-cultural (civil law/common law), generational (old/young), and professional (professors/attorneys)-were progressively resolved in favor of the young technocrats. They prevailed over the grand old men in the 1980s, pushing arbitration from (1) an informal mode of dispute settlement to (2) a judicialized system more akin to U.S. "litigation" (Dezalay and Garth 1996: 54). Put summarily, the "victory" of the young technocrats led to the emergence, and steady Americanization, of a new version of ICA.

Scholars subsequently grounded new research on the arguments of Dezalay and Garth. Franck, for example, mentioned a "shift in the group serving as arbitrators, which has grown beyond the 'grand old men' to a younger generation of arbitration technocrats" to introduce her study of the "role" of international arbitrators (Franck 2006: 500). Others have sought to update the conclusions of Dezalay and Garth in light of additional data. Schultz and Kovacs claim, on the basis of a survey of lawyers and arbitrators, that a "third generation of arbitrators" (the "Managers") has now emerged (Schultz and Kovacs 2012). …

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