Legal Theory of International Arbitration

by Gaillard, Emmanuel

• ISBN13: 9789004186415
• ISBN10: 9004186417
• Format: Hardcover
• Copyright: 2010-05-01
• Publisher: Martinus Nijhoff

Summary

International arbitration readily lends itself to a legal theory analysis. The fundamentally philosophical notions of autonomy and freedom are at the heart of its field of study. Similarly essential are the questions of legitimacy raised by the parties'

Author Biography

Emmanuel Gaillard is Professor of Law at University of Paris XII and a prominent practitioner in the field of international arbitration, acting as both counsel and arbitrator. Through his practice, extensive writing and teaching, he has contributed to the shaping of contemporary international arbitration law.

Table of Contents

Introduction	p. 1
The Representations of International Arbitration	p. 13
International Arbitration Relegated to a Component of a Single National Legal Order	p. 15
The Justifications	p. 15
The Objectivist View	p. 15
The Subjectivist View	p. 18
The Philosophical Postulates	p. 21
State Positivism	p. 21
The Quest for Order	p. 22
International Arbitration Anchored in a Plurality of National Legal Orders	p. 24
The Philosophical Postulates	p. 26
State Positivism	p. 26
The Westphalian Model: Indifference as a Virtue	p. 28
Critical Analysis	p. 31
The Respective Title of the Law of the Seat and That of the Place or Places Where Enforcement is Sought to Govern the Juridicity of Arbitration	p. 32
Avoiding Lex Executionism	p. 33
International Arbitration as an Autonomous Legal Order: The Arbitral Legal Order	p. 35
The Philosophical Postulates	p. 39
The Jusnaturalist Trend	p. 40
The Transnational Positivist Trend	p. 45
Transcending the Theme of the Inadequacy of National Legal Orders	p. 46
Endorsement of the Majoritarian Principle	p. 48
The Dynamic Nature of the Transnational Rules Method	p. 50
The Recognition of the Existence of an Arbitral Legal Order	p. 52
The Recognition of the Existence of an Arbitral Legal Order in Arbitral Case Law	p. 52
The Recognition of the Existence of an Arbitral Legal Order by National Legal Orders	p. 60
The Consequences of the Representations of International Arbitration	p. 67
The Consequences of the Representations of International Arbitration on the Arbitrators' Power to Adjudicate	p. 67
Dealing with Anti-Suit Injunctions	p. 70
Anti-Suit Injunctions Issued by the Courts of a State Other than That of the Seat of the Arbitration	p. 71
Anti-Suit Injunctions Issued by the Courts of the Seat of the Arbitration	p. 78
The Question of Lis Pendens Between National Courts and Arbitral Tribunals	p. 86
The Consequences of the Representations of International Arbitration on the Arbitrators' Decisions	p. 92
The Consequences of the Representations of International Arbitration on the Arbitrators' Use of their Freedom to Conduct the Arbitral Proceedings and to Identify the Rules of Law Governing the Merits of the Dispute	p. 93
The Conduct of the Arbitral Proceedings	p. 94
The Evolving Sources	p. 94
The Enduring Stakes	p. 99
Observing the Trends	p. 105
The Rules Applicable to the Merits of the Dispute	p. 107
The Evolving Sources	p. 107
The Enduring Stakes	p. 112
Observing the Trends	p. 113
The Consequences of the Representations of International Arbitration on the Limitations on the Parties' Freedom to Choose the Rules of Law Governing the Merits of the Dispute	p. 114
The Monolocal Approach	p. 115
The Westphalian Approach	p. 118
The Transnational Approach	p. 126
The Consequences of the Representations of International Arbitration on the Fate of the Award	p. 135
The Fate of an Award Set Aside in the Legal Order of the Seat	p. 135
The Fate of a Decision Refusing to Set Aside an Award in the Legal Order of the Seat	p. 144
Conclusion	p. 151
About the Author	p. 155
Bibliography	p. 167
Table of Abbreviations	p. 183
Index	p. 185
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