A Call for Rethinking International Arbitration: A TWAIL Perspective on Transnationality and Epistemic Community

Abstract

AbstractDespite the increasingly diversified discourses in international commercial arbitration, this device of socio-legal regulation remains a relatively under-theorized subject. In particular, far too little attention has been paid to analyzing international commercial arbitration through critical approaches such as Third World Approaches to International Law (TWAIL). TWAIL is broadly understood as a methodological reorientation in international law by highlighting the historical links between the foundations of this field of law and the history of capitalism and imperialism as well as the colonial and Eurocentric legacies in the structure and operation of the current international legal regime. With this in mind, two fronts in international commercial arbitration invite a reexamination through a TWAIL perspective and by drawing on the concept of hegemony. One front is the transnational account of arbitration, and the other one is the epistemic community of arbitration. By examining these two notions through a narrative of hegemony of Western legal traditions, we posit that any effective attempt at redefining or reforming arbitral governance structure towards sustaining diversity requires a deeper understanding of historical and current world power structures and creating a vision for the prospect of dehegemonization.