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Emmanuel Gaillard . Aspects Philosophiques Du Droit De L 942 EJIL 20 (2009), 919–964 Professor Gaillard undertakes an intellectual tour de force which demonstrates that the law 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 choice of law 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 lex loci 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 jurisdiction 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 courts 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
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