The Myth of Transnational Public Policy in International Arbitration

Abstract This Article traces the concept of transnational public policy as developed in context international arbitration at intersection between legal theory and practice. The emergence such a policy, it is claimed, would enable arbitrators to safeguard ultimately define interests that need be protected globalized economy, irrespective national laws. A historical contextualization efforts empower merchants their practices Germany United States nineteenth early twentieth centuries highlights reliance on mythical lex mercatoria shaped English commercial law. Further offered by postwar invocation “general principles law recognized civilized nations,” keep bay application supposedly less civilized, parochial orders, consequent “new” conceptualized especially France. These developments paved way, side, for later conceptualizations self-constitutionalizing beyond state, Gunther Teubner, and, practice notion arbitrators, Emmanuel Gaillard, culminating jurisprudential claims an autonomous arbitral order with regulatory dimension. In all these constructions, recourse comparative has been crucial element. Against this rough intellectual history, offers critique today’s construction probing into its constitutional dimension respective roles private interests. allows, particular, draw parallels historic U.S. debates allocation powers federalism.