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

Abstract : This paper revisits the sociology of international commercial arbitration on the basis of unexploited archives and data. This material casts new light on the competition between " grand old men " and " young technocrats " in the 1980s and 1990s, a theme that has structured the analysis of international commercial arbitration since the pioneering work of Yves Dezalay and Bryant G. Garth (Dealing in Virtue). In contrast, the data show that the crucial transformative period actually took place between the 1950s and 1970s, when a relatively well-defined group of individuals emerged as the leading arbitrators at the International Chamber of Commerce. These individuals— the " secant marginals " — succeeded in constructing a cooperative interface (rather than competition) between otherwise separate legal systems and professions. In doing so, they created the conditions necessary for the emergence of a new transnational legal profession. At a more general level, the article proposes an alternative narrative of globalization, wherein actors operating at the intersection of various systems, create new arenas of governance on the basis of inter-system cooperation. 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't 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 Zarathustra 1 Please direct all correspondence to Florian Grisel, Centre national de la recherche Sci-entifique, Centre de Th eorie et analyse du droit,
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Florian Grisel. Competition and Cooperation in International Commercial Arbitration: The Birth of a Transnational Legal Profession. Law and Society Review, Wiley, 2017, 51 (4), pp.790 - 824. ⟨http://onlinelibrary.wiley.com/doi/10.1111/lasr.12295/abstract⟩. ⟨10.1111/lasr.12295⟩. ⟨hal-01666230⟩

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