Commercial Arbitration – A Case of Private Transnational Self-Governance?

The empirical focus of this analysis is the patterns of interaction in transnational commercial trade and the settlement of its disputes. The first and most basic observation is that these patterns occur in the absence of any satisfactory legal order to regulate crossborder interaction between private individuals and organizations over and above that of single national legal systems. Instead, private institutions have emerged which not only administer privately developed economic mores, but which also adjudicate disputes in cross-border transactions. However, despite the emergence of a significant authority for private norm-generation and for independent private dispute settlement, governance of transnational trade is characterized by interdependencies of and dynamics between public and private contributions. In theoretical terms transnational trade, with its mechanisms of norm-creation and dispute settlement, presents an interesting starting point for examining patterns of ordering which exist beyond the nation state. It combines a governance perspective which focuses on the contributions made by a variety of actors to transnational political organization, with a law-informed approach which is concerned with the demise of what has been established as the Westphalian order, i.e. the monopolizing of legal developments by sovereign states