942  EJIL 20 (2009), 919–964

Professor Gaillard undertakes an intellectual tour de force which demonstrates that the of international arbitration cannot prop- erly be understood without refl ection on its philosophical underpinnings and, vice versa, that different philosophical conceptions of the law of international arbitration are not with- out practical implications.1 This is no small feat and, as Professor Lalive noted in his own review, while the epithet ‘philosophiques ’ in the title may scare more pragmatically-oriented readers away, Professor Gaillard’s lectures, which have now been published in a handy

pocket book format, are indeed ‘ indispensable ’ Downloaded from to a proper understanding of contemporary international arbitration.2 Professor Gaillard starts his investigation with an interesting thesis: the law of arbitra- tion, even more so than private international law, lends itself to philosophical refl ection. http://ejil.oxfordjournals.org/ This is because the ‘ essentially philosophical’ notions of free will and liberty lie at the very core of the discipline. At the same time, the exercise of these rights – the freedom of the parties to create a private tribunal to resolve their differences, to agree on a procedure that is most appropriate in the circumstances, and

to choose the applicable law, and the corre- by guest on July 11, 2014 sponding liberty of the arbitrators to rule on their own competence, to regulate the arbitral process, and, in the absence of by the parties, to designate the applicable law – also raises questions of legitimacy. Even more fundamentally, it also raises questions of the source of the arbitrators’ authority and the Emmanuel Gaillard . Aspects legal nature ( juridicité ) of the resulting deci- philosophiques du droit de sion. Last but not least, it raises the question of l’arbitrage international . Leiden : the ‘ sources ’ of the law of international arbi- Martinus Nijhoff Publishers, 2008 . Pp. tration – the ultimate criterion of academic 432 . € 128 . ISBN: 9789004166196 . The conventional wisdom is that the commer- cial man is more interested in things mat- 1 Prof. Gaillard himself refers, inter alia, to Henri erial than philosophical refl ection. Professor Batiffol’s classicœ uvre ‘Aspects philosophiques du droit international privé ’ (1956) and Berthold Goldman’s Emmanuel Gaillard – a prominent commercial celebrated 1963 Hague lectures Les confl its de lois arbitration practitioner and professor of law – dans l’arbitrage international de droit privé (1956) in his Hague Academy lectures of 2007 sets as sources of his intellectual inspiration. out to prove that the conventional wisdom is 2 P. Lalive, ‘ Book Review: Aspects Philosophiques not entirely accurate. In the best French tradi- du Droit de l’Arbitrage International’ , 26 ASA tion of private international law scholarship, Bull (2008) 700. Book Reviews943 relevance, in the view of many, of any legal law of the seat, which, according to this view, theory. constitutes the ‘ forum ’ of the arbitration. This However, while the law of international approach incorporates both an ‘ objectivist ’ arbitration may indeed provide a fertile and a ‘ subjectivist ’ strand. The objectivist ground for philosophical refl ection, Profes- strand was formulated in the most compelling sor Gaillard notes that intellectual exchanges fashion by F.A. Mann in his celebrated ‘ Lex between philosophers of law and specialists facit arbitrum’ in 1967.4 In the legal sense, in the law of arbitration have remained rela- according to Mann, ‘ no international arbitra- tively limited. With few exceptions – again, tion exists’ . 5 Just as every system of private these being found mainly in France, or at international law is a system of national law, least in the francophone world3 – arbitration ‘ every arbitration is a national arbitration, scholars have focused on expounding on that is to say, subject to a specifi c system of positive law rather than the philosophy of national law’ . 6 In other words, the lex arbitri is law. Whatever encounters there have been the arbitri . As modern representatives of Downloaded from occurred mainly in the context of the grand the ‘ subjectivist ’ strand of this representation, lex mercatoria debate in the 1960s and 1970s. Professor Gaillard cites the authors of the lead- Since then, silence has prevailed, with the ing Swiss treatise on international arbitration, exception of another interesting debate, con- Jean-François Poudret and Sebastian Besson. ducted mainly in the 1980s, about the ‘ delo- According to these authors, in choosing the calization ’ of international arbitration (which seat of arbitration, the parties or, as the case http://ejil.oxfordjournals.org/ Professor Gaillard curiously hardly mentions, may be, the arbitral institution or the arbitra- although it does appear to underlie the second tors must be understood to have placed the of his three representations of the law of arbitration under the exclusive of arbitration). the law of the seat. Thus, unlike the objectiv- Professor Gaillard’s principal thesis can be ist strand, which draws the law governing the summarized briefl y: the various views of the arbitration from a mere fact – the place of the philosophy of the law of international arbi- seat – the subjectivist strand seeks to root the tration, which structure the thinking on the legitimacy of the primacy of the law of the seat by guest on July 11, 2014 subject, can be captured in the form of three in the free choice of the parties (or, as the case mental ‘ representations ’ , which he terms the may be, the arbitral institution or the arbitra- ‘ monolocal ’ or ‘ monadic ’ (‘ monolocalisatrice ’ ) tors). Professor Gaillard sees the philosophical approach, the ‘ Westphalian ’ (or ‘ multilocal ’ underpinning of the monolocal approach in or ‘ decentralized ’ ) approach, and the ‘ transna- the statist version of legal positivism à la Hart tional’ approach. While Professor Gaillard rec- and Kelsen: any legal activity, including arbi- ognizes that all three approaches make a valid tration, must derive its validity from a system point and have their supporters, he considers of local law (or international law). that only the third, transnational approach The second, ‘ Westphalian ’ approach sees survives a rigorous philosophical criticism in the legal foundation of international arbitra- terms of its coherence and effectiveness. tion in the plurality of local legal orders. Unlike The fi rst of the three representations – the the monolocal approach, the Westphalian ‘ monolocal ’ approach – seeks to reduce the approach is thus ‘ multilocal ’ or ‘ polyadic ’ (‘ mul- law governing international arbitration to the tilocalisatrice’ ). According to this philo sophy,

3 See, e.g., the works cited by Prof. Gaillard: B. Oppetit, Théorie de l’arbitrage (1998); S. Bollée, 4 See Mann, ‘ Lex Facit Arbitrum’ , in P. Sanders Les méthodes du droit international privé à l’ épreuve (ed.), International Arbitration Liber Amicorum for des sentences arbitrales (2004); H. Arfazadeh, Ordre Martin Domke (1967), at 157. public et arbitrage international à l’ épreuve de la 5 Ibid., at 159. mondialisation (2006). 6 Ibid. 944  EJIL 20 (2009), 919–964 every jurisdiction concerned which comes into Professor Gaillard stresses that his three contact with an arbitration has an equally theories are ‘ representations ’ of ways of think- valid claim to pronounce on the validity of the ing and, as such, matters of belief, if not faith, award, in particular in the context of execution. rather than matters of scientifi c truth. Accord- In other words, under the multilocal approach ingly, they cannot be judged in terms of right the validity of international arbitration is ulti- or wrong but only in terms of their coher- mately tested at the point of execution. The ence or effectiveness. This does not mean that philosophical thinking of such a Westphalian, they are without practical implications, and, multilocal approach is rooted in a decentralized indeed, it is to these implications that Profes- view of the law of arbitration. The arbitral sor Gaillard devotes the second part of his process – and the arbitral award – is vali- book. It is also this part of the book – which dated retroactively, at the stage of recognition covers matters such as anti-suit injunctions, and enforcement, and thus has no ‘ centre ’ . litispendence between state and arbi-

Philosophically speaking, like the monolocal tral tribunals, and identifi cation of the rules of Downloaded from approach, the multilocal approach is based on law governing the merits of the claim – that is a positivist view of the law of arbitration. The of most immediate use for an arbitration prac- only difference is that the multilocal approach titioner. conceives of the relations between states Professor Gaillard’s book is a powerful according to a Westphalian model of sover- defence of the ‘ autonomy ’ of the institution eignty and inter-state relations. According to of international arbitration – autonomy not http://ejil.oxfordjournals.org/ Professor Gaillard, the multilocal approach is only in terms of the law governing the arbitral embodied, in particular, in the New York Con- tribunal, but also in terms of procedure and vention, which (unlike the earlier Geneva Pro- substantive law. Professor Gaillard does not tocol) severed the validity of the arbitral award trust any theory which subordinates the insti- for purposes of recognition and enforcement tution of international arbitration to a local from its validity under the law of the seat. legal order – whether the law of the seat or the The third, transnational representation is law of any other state where the enforcement based on the idea that the legal nature or ‘ legal- of the arbitral award may be sought. Arbi- by guest on July 11, 2014 ness’ (juridicité ) of arbitration may be derived, tration lawyers should not relax even if the not from the legal order of a state, whether number of arbitration-friendly the law of the seat or the place(s) of execution has increased over the years and the non- of the arbitral award, but from a ‘ third ’ legal interventionist stance has gained increas- order – the legal order of arbitration (l’ordre ing acceptance. As Professor Gaillard puts juridique arbitral). While this approach builds it, a slave whose master has converted into on the earlier lex mercatoria debate, it goes a philosophical humanist is still a slave – he is beyond the applicable law concerns of this free to come and go because his master allows debate and raises the more fundamental ques- him, not because he is truly free. tion of the source of the authority of the arbi- In developing a philosophical vision of the trators. According to Gaillard, this approach law of international arbitration which has is transnational (rather than ‘ a-national ’ ) in important practical implications, Professor that it does not conceive of states in isolation Gaillard manages to steer away from one of the from each other, but is concerned with cross- common pitfalls of academic legal philosophy – border commercial activities between states – practical irrelevance. Since just as much of and thus shifts the conceptual focus from the theory of public international law tends the ‘ plural ’ to the ‘ collective ’ . It is this third to collapse, all too easily, into one or another approach, in Professor Gaillard’s view, that kind of political ‘ realism ’ – and thus trade is the most appropriate representation of the the professional function and independence reality of international arbitration as it exists of the discipline for its (perceived) greater today, and the one to which he lends his own effectiveness – the theory of private interna- support. tional law often tends to draw its ultimate Book Reviews945 justifi cation from moral philosophy rather than that the courts in such jurisdictions are com- from a conceptual analysis of its (all too) petent and well versed in issues arising in the mundane professional function. Consequently, context of international arbitration – and thus just as the move of public international law less likely than courts in many other jurisdic- theory towards political realism tends to tions unduly to interfere with the arbitration? weaken rather than strengthen international Similarly, is it not the case that the West- law, the move of private international law phalian approach captures the essence of theory to moral philosophy tends to undermine international arbitration from the point of the fi eld’s intellectual independence – and, as view of its users: is it not true that, from their a result, its practical relevance. point of view, the real value of an international While practically consequential and as such arbitral award lies in its enforceability in any standing out from the vast academic litera- jurisdiction in which the recalcitrant party ture on legal philosophy, even those (like the may have assets, regardless of the seat of arbi- present author) who share Professor Gaillard’s tration? More specifi cally, is it not true that, Downloaded from concerns and his vision of a practically from the user’s point view, the more there are relevant legal philosophy may ask themselves such jurisdictions – and accordingly, the more whether it is indeed necessary, practically there are which apply to the execution of speaking, to go so far as to seek to create a legal the award – the better? In other words, that fi ction of a ‘ legal order of arbitration ’ – since the plurality of applicable laws is one of the in the end fi ction it is, as recognized by Pro- most valuable assets of international arbitra- http://ejil.oxfordjournals.org/ fessor Gaillard himself, rather than a scientifi c tion rather than a conceptual problem? truth. Is it not the case that the same goal – While perhaps taking a step or two too far the functional independence of international in the direction of academic philosophy, Pro- arbitration from undue interference by local fessor Gaillard’s concept of a transnational law and local courts – may be achieved by ‘ arbitral legal order’ remains philosophically less heavy conceptual tools? Is it not the case attractive, even seductive. It is certainly true that both the monolocal and the Westphalian that international arbitration practition- approaches, although justly criticized by Pro- ers tend to form a professional community by guest on July 11, 2014 fessor Gaillard as exclusive representations which is not limited by national borders or of the institution of international arbitration, bar membership, and that many, if not most, contain a kernel of truth about the reality of of the members of this community tend to international arbitration? share a common understanding of the meth- As to the former, is it necessary, or indeed ods of private international law, the relevant correct, to deny the practical relevance of the standards of international due process, and law of the seat in an international arbitration? the broad transnational public policies that Is it not true that, from the point of view of the form the legal infrastructure of their profes- arbitral tribunal (and, by implication, the par- sion. While these methods, standards, and ties), the law of the seat is an important consid- policies have not been codifi ed or endorsed eration, since ultimately it is the courts of the by any legislature, they tend to form the seat that will determine, in case of a challenge, conceptual, procedural, and policy basis on whether or not the arbitral award should be which international arbitration is practised. set aside, and that in this strictly legal (rather However, this does not necessarily mean that than philosophical) sense arbitral tribunals such methods, standards, and policies form, or are indeed subordinated to the law of the seat? should be considered to form, any kind of ‘ tiers Is it not true that it is precisely for this reason droit’ . In practice, the daily business of inter- that parties prefer to localize their arbitral tri- national arbitration is conducted on the basis bunals in jurisdictions such as Paris, London, of private procedural rules and substantive and Geneva – precisely because they know laws chosen by the parties, and while confl icts that the arbitration law of these jurisdictions between such rules and laws and the relevant is supportive of international arbitration, and transnational private international law rules, 946  EJIL 20 (2009), 919–964 due process standards, or public policies do is no law of international arbitration. This is occur, they are in practice rare – although to say, there is no coherent or unifi ed law of admittedly, when they do arise, they tend to international arbitration – there are only laws attract attention and stir debate among arbi- of international arbitration. It is hardly dis- tration lawyers – which in itself may explain putable that the law of international arbitra- the prominent role played by exception in the tion is marked by a certain systemic dépeçage : law of international arbitration. it is rare in international arbitration that only However, if it is indeed the case that most one law is applied; indeed, if this were the arbitration lawyers most of the time conduct case, one would not be dealing with interna- most of their daily business without any such tional arbitration. The arbitration agreement, confl icts, is it practically speaking necessary the arbitral process, the arbitral tribunal, the or justifi ed to conclude that, because confl icts merits of the claim, or the subject matter of the between local laws and rules and transna- dispute, and the recognition and enforcement tional private international law rules, due of the arbitral award are rarely, if ever, gov- Downloaded from process standards, and public policies may erned by the same law. In other words, instead and do occur, the whole philosophy of the law of a coherent or unifi ed tiers droit , the law, or of international arbitration should be founded the ‘ legal order ’ , of international arbitration on the possibility of such extraordinary inci- is marked by a certain systemic decoherence: dents or circumstances? Is it not true that, rather than a natural or conceptually coher- while transnational rules, standards, and poli- ent order grounded in moral philosophy, the http://ejil.oxfordjournals.org/ cies may have to be invoked in certain extraor- image of this law resembles more that of a dinary circumstances, in order to avoid the Frankensteinian fi gure – a legal entity com- application of an undue local rule or ruling of posed of body parts originating from different a local , this does not necessarily mean jurisdictions and imbued by life only after its that such instances should be considered the creation. It might be conceptually more accu- ordinary course of business in international rate to call such a fi gure a ‘ mechanism ’ or arbitration? In other words, rather than hav- even a ‘ machine ’ rather than a legal ‘ order ’ ing a conceptually dominating role, should or indeed a ‘ system ’ . The self-image of such by guest on July 11, 2014 one not see such rules, standards, and policies a mechanism may not always be pretty, in more as a conceptual reservation, applicable in particular if measured by classical standards certain circumstances, rather than as the rule of conceptual coherence or integrity (rather of law itself? Even assuming that their role is than, say, a Picassian standard of composi- wider, and that they apply not only in cer- tion), but it does tend to fi t more accurately tain extraordinary circumstances where the with the cubist reality that it refl ects. local rule or ruling is found to be particularly Such a fragmented (or, perhaps more undue, but also to fi ll in gaps or to clarify ambi- accurately, fractured) image of the world of guities in the otherwise applicable local laws international arbitration should not come as a or private arbitration rules (thereby allowing surprise. After all, what international arbi- the arbitrators to presume that the content of tration is all about is differences – differences the local law or procedural rule is the same as between parties hailing from different jurisdic- that of the corresponding transnational rule), tions and subject to different laws, submitted to is it not true that they can fulfi l this role with- arbitration before an arbitral tribunal often out being elevated to the level of a ‘ legal order sitting in a third country and composed of arbitration’ ? of members of different , and Apart from arguably not being strictly resulting in an award which is in principle necessary from a practical point of view, the enforceable in almost any jurisdiction, almost concept of ‘ legal arbitral order’ also tends to anywhere. Assuming it is true that the ulti- convey a somewhat idealized picture of the mate criterion of academic relevance of any law of international arbitration. Paraphrasing legal theory is the coherence of its doctrine F.A. Mann, in a strict conceptual sense, there of sources, then one must say that the law Book Reviews947 of international arbitration is not academi- international arbitration alive and going. cally relevant – or that the criteria of aca- While his work may be too practically oriented demic relevance are themselves practically to attract the attention of more academic legal irrelevant. In practice, the real ‘ source ’ of the philosophers who tend to focus on more coher- law of international arbitration is not tran- ent or unifi ed (albeit perhaps in reality non- snational rules of private international law, existent) concepts of law, the loss would be or international standards of due process, or exclusively of those who do not pay attention. transnational public policy. Its real ‘ source ’ Indeed, it would not be the fi rst time that the is differences, that is, differences between legal academia was caught sleeping, looking at different applicable laws, or confl icts of laws, itself in the mirror, and believing that what it and, ultimately, differences between different sees in front of itself is the image of the world. parties. Without such differences interna- Veijo Heiskanen tional arbitration would not exist, not at least Partner, L ALIVE, Geneva as a professional practice. In this sense, the Email: [email protected] Downloaded from law of international arbitration is academi- doi: 10.1093/ejil/chp047 cally problematic: it lacks the sort of natural integrity or conceptual coherence that legal philosophy has traditionally required from a legal system for it to be recognized as a legal system. The law of international arbitration is http://ejil.oxfordjournals.org/ not coherent or uniform. In reality, it leaks at the very source where the reality itself seeps in, in the form of differences between different parties. These differences, whether ultimately caused by changes in market circumstances or economic or political developments, or simply random contextual interference, tend to cause even the air-tightest cross-border commercial by guest on July 11, 2014 contract to leak and decohere, which in turn tends to lead to disputes between the parties and, ultimately, to international arbitrations.7 It is perhaps not surprising if the law of arbi- tration itself tended to refl ect this original decoherence. Professor Gaillard’s book is an admirable inquiry into this complex web of differences that ultimately keep the law and practice of

7 Such a process of ‘ decoherence ’ of the law is not unlike the corresponding (but inverse) phenom- enon in quantum physics ( ‘ collapse ’ of the wave function). If in physics the virtual phenomenon (i.e. the wave function), when interfered with, ‘ leaks ’ into the (classical) reality and thereby decoheres, in law it is the commercial or econom- ic reality that tends to interfere with cross-border contracts, causing them (and, by extension, the law of international arbitration) to leak and decohere.