A Geography of International Arbitration

Abstract

### a. Arbitration as a Place of Interlegality THIS ARTICLE will address the evolving standards of independence and impartiality that are central to the selection of arbitrators in international commercial arbitration, and I locate my presentation in the region of what Santos calls ‘interlegality’.1 Santos argues that we live in a time of porous legality or of legal porosity, of multiple networks of legal orders forcing us to constant transitions and trespassings.2 Elsewhere I have noted that in the interests of economic competitiveness and growth, developing states are decentralizing, deregulating and liberalizing in order to provide more attractive economic environments for financial capital.3 As the influence of state-led institutions decreases, we can see a shift in the scales of governance. While state institutions are minimized and local actors acquire the opportunity to exercise influence over their destinies, the international, globalized market has been groping for its own choreography of governance.4 The growth in international arbitration of commercial disputes is but one example of this new choreography of governance. Santos, in arguing for a symbolic cartography of law, argues that interlegality is the intersection of different legal orders.5 He contends there has been an increase in the number, locations and penetrations of law into social, political, cultural and economic life. The premise of the concept appears accurate: governmental regulation of these four realms of life grows as laws are enacted, for example, to alter or entrench notions of marriage, implement term limits, protect cultural heritage and subsidize business interests. The regulation occurs at local, state, federal and international scales. Other regions also create law: by way of example we can look to Islamic, Hindu, Jewish, Gypsy and transnational arbitration, the internal governance of multinational corporations, the Catholic Church, all of which exist at a transnational scale, and indigenous peoples, criminal organizations and militia movements …