Enforcing global law: international arbitration and informal regulatory instruments

Abstract

This paper starts from the assumption that international arbitration easily fits in with a pluralist conception of global law. Globalization has created new informal instruments of regulation, and arbitration is an efficient tool for enforcing them. First, the paper presents a brief analysis of the most noteworthy international initiatives in the area of transnational legal indicators. It will become clear how these indirect regulatory instruments are contributing to the creation of a new regulatory profile in the area of arbitration. Second, anumber of examples will show that both commercial and investment arbitration are receptive to the multiple appearances of legal pluralism in the arbitration arena. Arbitral awards are turning ever more frequently to instruments created and managed by the private sector -i.e., codes of conduct, economic indexes, economic indicators, financial premiums, valuation methods, audits-to resolve the complex disputes arising from international business. Third, sectorial arbitrations are striking examples of how private sector initiatives implement sophisticated private conflict resolution mechanisms. The paper will present a particularly detailed analysis of the international sports sector, in which an interesting symbiosis can be discerned: on the one hand this non-state sector has unilaterally created a large number of new instruments of global regulation -i.e., sports constitutions, charters, statutes, codes-that are resorting to arbitration to increase their independence from the public sector. On the other hand, sports arbitration -essentially, the CAS-is meanwhile significantly contributing to the sector's maturity by actively participating in the consolidation of lex sportiva by means of its awards. Finally, the paper concludes with some reflections and ideas for further discussion.

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