This article examines the mixed effect of arbitration upon the generation of international law norms; in particular, how arbitration can generate private law norms so effectively and yet still face strong resistance in public international law processes and controversies. The work of arbitration for international commercial litigation has been nothing less than spectacular. In both the private international and domestic civil contexts, arbitration has provided viable remedial solutions and functional adjudication when the law was either nonexistent or incapacitated. It has supplied a workable and adaptable trial system, which-on the international side-could also generate substantive legal norms. Arbitration thereby has redressed thefailings of sovereign politics and adversarial justice, achieving its greatest success incircumstances dominated by a commercial ethos.
Thomas E. Carbonneau, Commercial Peace and Political Competition in the Crosshairs of International Arbitration, 18 Duke J. Comp. & Int'l L. 311 (2008).