The Ballad of Transborder Arbitration01 Jan 2002
International commercial arbitration (ICA) is many things positive. Because business transactions cannot take place without a functional system of adjudication,ICA has enabled parties to engage in and pursue international commerce. As a result, it has had an enormous impact upon the international practice of law, the structuring of a de facto international legal system, and the development of a substantive world law of commerce. In a word, ICA has been a vital engine in the creation of a transborder rule of law. Furthering this design, the arbitral "method"has even been applied to the unruly political problems that attend international trade and the implementation of international trade policy.
Despite its service to the wealth-creating ambition of the international business community, ICA represents an idealistic experiment in transborder understanding and cooperation. The architects of the process faced head-on the challenge of diversity. They confronted a wide variety of cultural, historical, religious, national,regional, economic, and political dispositions in erecting the process. Initially, as with any venture in transnational cooperation, optimism reigns and the horizons are limitless. As actual discussions ensue, the idealistic embers die down, and the proponents of harmony become increasingly unwilling to surrender advantage. The veneer of universal understanding begins to yield to the uglier and more obdurate reality of self-interest. The founders of ICA, therefore, engaged in and demonstrated an abundance of creativity, ingenuity, and resourcefulness of a technical, legal, and political kind in order to establish a workable process of adjudication that spanned the range of international commercial disagreements and the breadth of world laws and legal cultures.