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Arbitration in Three Dimensions
The law applicable to arbitration is different from the law applicable in arbitration. The latter leads arbitrators to decide as they do. The former refers to the source of theirauthority and the effect of their decision
the legal order that governs arbitration. According to the territorialist thesis, an arbitration can have no foundation other than that of the legalorder of the particular state where the arbitration takes place. This outdated conception isdisproved by the simple factual observation that a plurality of legal orders may give effect toarbitration. Some French scholars promote the notion of an autonomous arbitral order.Inasmuch as they ultimately seek to establish this order by positing its recognition by the very state orders from which they claim autonomy, their idea is circular and in effect no more thana dressed-up variant of ordinary horizontal pluralism. But the model of horizontal pluralismfails to account for important orderings of arbitral activity. Arbitration in modern society isaccurately perceived as a complex, three-dimensional form of pluralism, in which legal orders(i) are not exclusively those of states and (ii) frequently overlap.
Lectures on legal theory tend to have two things in common. First, the speaker isconvinced of the transcendent importance of the subject, holding forth ardently tothe point of losing track of time. Secondly, the audience is less likely to perceivethat they are being treated to earthshaking revelations, which after all present
Law Department, London School of Economics and Political Science. Centennial Professor, LondonSchool of Economics; Michael Klein Distinguished Chair, University of Miami. This is the text of Professor Paulsson’s inaugural lecture as Centennial Professor at the LSE, delivered 24 November 2009.