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

Published date01 December 2017
Date01 December 2017
Competition and Cooperation in International
Commercial Arbitration: The Birth of a
Transnational Legal Profession
Florian Grisel
This paper revisitsthe sociology of international commercial arbitrationon 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 thathas 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 actuallytook place between the 1950s and1970s, when a relatively well-
defined group of individuals emergedas the leading arbitrators at the Interna-
tional Chamber of Commerce. These individuals— the “secant marginals”—
succeeded in constructing a cooperative interface (rather than competition)
between otherwiseseparate legal systems andprofessions. In doing so, they cre-
ated the conditions necessary for the emergence of a new transnational legal
profession.At a more general level, the article proposesan alternative narrative
of globalization,wherein actors operating at the intersection of various systems,
create new arenasof governance on the basis of inter-systemcooperation.
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 peo-
ple 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 ter-
rible 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
Please direct all correspondence to Florian Grisel, Centre national de la recherche Sci-
entifique, Centre de Th
eorie et analyse du droit, 200 avenue de la R
epublique, Nanterre,
France; email:
The author would like to express his deep thanks to the editors and anonymous
reviewers of the Law & Society Review who have offered valuable feedback on this article.
The author is also deeply grateful for the extremely helpful guidance provided by Robert
C. Ellickson, Maria Hauser, Jan Paulsson, Alec Stone Sweet, Albert Jan van den Berg, V.V.
Veeder, and Patrick Weil.
1 Thomas Wayne, Part 1, Title 6.
Law & Society Review, Volume 51, Number 4 (2017)
C2017 Law and Society Association. All rights reserved.
International commercial arbitration (ICA) has become the pre-
ferred method for the settlement of important transnational business
disputes over the course of the last half century,
displacing domestic
courts (Stone Sweet and Grisel 2017). A network of arbi tral institu-
tions, the International Chamber of Commerce (ICC) being the
most important, processes the bulk of these disputes, the stakes
of which are enormous. A recent survey of the leading law firms
in the field reported information on 109 active ICA cases in
which at least $500 million was “in controversy,” including fifty-
eight cases in which claims totaled more than $1 billion, and
nine with claims over $9 billion.
The actors who manage the
system, typically leading arbitrators themselves, once worked in
relative obscurity. Today, they publish scholarship,
organize con-
and build new organizational forms for promoting
activities that are now accessible to the public. As
the importance of ICA has grown so has interest in the sociologi-
cal profile of arbitrators, and in how they succeeded in construct-
ing ICA as a private system of transnational governance.
The pioneering monograph by Yves Dezalay and Bryant G.
Garth (1996), Dealing in Virtue,
has dominated this topic for more
than 20 years. Dezalay and Garth tracked the evolution of ICA
between the 1980s and the 1990s, focusing on the competition
between two groups of “merchants of law” which, they claimed,
structured the emergence of a new “field” (Dezalay and Garth
1996: 57). The first group of incumbents was composed of “grand
old men,” a category dominated by “very senior European profes-
sors imbued with the traditional values of the European legal elit-
es” (Dezalay and Garth 1996: 34). The second group of
challengers was made of “young technocrats” who acquired their
legitimacy as litigators in Anglo-American law firms (Dezalay and
Garth 1996: 36). According to the authors, each of these groups
drew their legitimacy from specific systems: the law schools of the
civil law world on the one hand, and the law firms of the common
On the disputing parties’ preference for international commercial arbitration, see
for instance the survey carried by White and Case and Queen Mary (University of London),
“2015 International Arbitration Survey: Improvements and Innovations in International
Michael Goldhaber (2013) “Arbitration Scorecard 2013: Contract Disputes,” The
American Lawyer 1July.
Specialized reviews count, among others, Arbitration International,theJournalof Inter-
national Arbitration, and the Revue de l’arbitrage.
The annual congress organized by the International Council for Commercial Arbi-
tration (ICCA) is particularly important in the field.
These include, for instance, the ICCA and the Milan Club of Arbitrators.
This book followed an article published in the Law & Society Review (Dezalay and
Garth 1995).
Competition and Cooperation in International Commercial Arbitration 791
law world on the other hand (Dezalay and Garth 1996: 33–62).
The divides between these two groups—cultural (civil law/common
law), generational (old/young), and professional (professors/attor-
neys)—were progressively resolved in favor of the young techno-
crats. They prevailed over the grand old men in the 1980s,
pushing arbitration from (1) an informal mode of dispute settle-
ment to (2) a judicialized system more akin to U.S. “litigation”
(Dezalay and Garth 1996: 54). Put summarily, the “victory” of the
young technocrats led to the emergence, and steady Americaniza-
tion, of a new version of ICA.
Scholars subsequently grounded new research on the argu-
ments of Dezalay and Garth. Franck, for example, mentioned a
“shift in the group serving as arbitrators, which has grown
beyond the ‘grand old men’ to a younger generation of arbitra-
tion technocrats” to introduce her study of the “role” of interna-
tional arbitrators (Franck 2006: 500). Others have sought to
update the conclusions of Dezalay and Garth in light of addi-
tional data. Schultz and Kovacs claim, on the basis of a survey of
lawyers and arbitrators, that a “third generation of arbitrators”
(the “Managers”) has now emerged (Schultz and Kovacs 2012).
Arbitrators themselves have adopted terms employed by Deza-
lay and Garth, referring to what they do as “practicing virtue”
(Caron et al. 2015). More generally, the prioritization of a small
group of “lawyers that count” (Dezalay et al. 2015: 27)
has had
a strong influence on the ways in which sociolegal scholars have
analyzed the significance of legal elites in globalization processes
(Dezalay and Madsen 2012; Hagan et al. 2006; Kauppi and
Madsen 2013; Sacriste and Vauchez 2007; Shaffer et al. 2015).
Dealing in Virtue has not only been highly influential, it has
also gone largely unchallenged. Dezalay and Garth based their
analysis on “almost three hundred interviews” (Dezalay and
Garth 1996: 9), making any challenge a daunting task.
paper is based on the analysis of new data that was specifically
compiled to explore an alternative explanation. Dezalay and
Garth emphasized incompatibilities between systems, tensions
that produced what they portray as a zero-sum competition
See Puig (2014) for an application to investor-state arbitration.
One early critique should be noted in this regard. A book reviewer of Dealing in Vir-
tue, who happened to be a former Secretary-General of the ICC International Court of Arbi-
tration, argued that “there [wa]s little basis, in [his] view, for the authors’ contention that
conflict between an aging cadre of notables, i.e., ‘grand old men,’ and a younger generation
of ‘technocrats’ hashelped to shape the modern development of international commercial
arbitration” (Schwartz 1997: 231). Among other reasons, Schwartz pointed out how “many
of those prominent in international arbitration are at the same time academics and practi-
tioners, which makes it even more difficult to speak of cleavage between the two.” (Schwartz
1997: 232).
792 Grisel

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