Merchants of Law as Moral Entrepreneurs: Constructing International Justice from the Competition for Transnational Business Disputes

Abstract

Over the past 20 years, international commercial arbitration has been transformed and institutionalized as the leading contractual method for the resolution of transnational commercial disputes. It has become an important institution of the growing international market. Although the process is far from unidirectional, this work of social construction can be described as a rationalization in the Weberian sense and also as an “Americanization” that has permitted U.S. litigators to shape the rules to favor their adversarial skills and approaches. An informal justice system has come increasingly to resemble “offshore litigation.”Drawing on Bourdieu's analytical tool of the legal “field” and, in particular, using the notion of an “international legal field,” this case study reveals how the continuing competition for business and for legitimacy—between civil law and common law, “grand old men” and “technocrats,” academics and practitioners—constructs and transforms the system of (international private) justice. As is true generally with respect to law, the details of the competition serve to build the careers of practitioners, to develop the area of practice, and to produce and legitimate the relevant “law.”

The Moral Entrepreneur: A New Component of Ethical Leadership

“…Thus, following Eisenbeiß's (2012) argument that moral identity helps to explain why leaders spend resources on addressing ethical dilemmas, we can conclude that moral identity also explains which dilemmas and issues leaders choose to engage in and spend resources on. Dezalay and Garth (1995) found in this respect that commercial arbitrators who are moral entrepreneurs are persons with strong moral beliefs.…”

“…The concept of moral entrepreneurship, or what Sunstein (1996) calls norm entrepreneurship, has been applied to the challenges faced by nongovernmental organizations concerned with human rights (Felner 2012), to the conditions under which global norms become part of the agenda of global governance (Reich 2003), to the transformation and institutionalization of international commercial arbitration as the leading contractual method for the resolution of transnational commercial disputes (Dezalay and Garth 1995), and to kitchen television programs that tackle some social problems like health and social exclusion (Hollows and Jones 2010). Fishman (2014) analyzed four examples of moral entrepreneurship: the incubation of moral norms against smoking, drunk driving, underage drinking, and copyright infringement.…”

Going global: professionals and the micro-foundations of institutional change

“…Of special interest is the phenomenon of 'globalized localisms' (Jenson and de Sousa Santos 2000;Carruthers and Halliday 2006), which consist of practices and ideas exported from core countries to the rest of the world. Examples include the spread of American-style corporate law practice (the 'Wall Street firm' described by Dezalay 1990), and the case that will form the empirical focal point of this article: the diffusion of the English common law trust to become a standard tool of international finance. As the data presented below will show, this case exemplifies the observation that that 'global arenas and global processes are constructed from below' (Fourcade and Savelsberg 2006: 514).…”

Boundary work and tax regulation: A Bourdieusian view

“…They have been a prevalent feature in studies of professions and knowledge; for example, between occupational scope leading to jurisdictional struggles (Abbott, 1988;Dezalay & Garth, 1995), between lay and expert knowledge (Kerr et al, 2007), and in the allocation of organisational tasks (Llewellyn, 1998). Others, including Gieryn (1999), describe the work of boundary drawing and maintenance as a resource used to establish epistemic authority.…”