Between interests and law: The politics of transnational commercial disputes

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Project Summary: This project seeks to explain variation in the institutions traders have used to resolve commercial disputes in the global economy. Conventionally, we think of the public courts of the state as the key providers of contract enforcement. In practice, however, private arbitral institutions are commonly used to adjudicate cross-border disputes between firms. Moreover, countries have made the decisions of these private courts binding in public law, a policy enshrined in international treaties. The result is a fascinating hybrid institution that performs one of the most basic functions in the world economy. The analysis seeks to determine the extent to which dispute resolution institutions have been shaped by A) the material interests of traders and B) legal norms diffused by epistemic communities of experts. It concludes that the former have been of greater importance in the lifespan of the regime, but that the latter have become predominant in recent decades.The larger implication of the study is that a key institution of the global economy does not take the "traditional" intergovernmental form IR theory predicts. Instead, it is a heterogeneous system incorporating many transnational actors and institutions. Data Abstract: The project employs mixed methods. Statistical analysis is used to perform descriptive inference on the use of private arbitration at the global level and in the national case studies (using newly compiled data), and to explain the diffusion of the regime in the postwar period. The core of the study, however, relies on 4 case studies (each divided into several chronological sub-cases) of the global regime (1900-1960), the United States (1700s-2012), Argentina (1700s-2012), and China (1800s-2012). The study brings several key historical episodes, and their associated documents, into the literature for the first time. These case studies employ chiefly archival and interview sources. Archives: Accessed the national archives of the US, UK, Argentina, and China, as well as archival sources from the New York Chamber of Commerce, various London-based commercial entities, and the United Nations. Interviews: The researcher spoke with 50 policymakers, business people, lawyers, and academic experts in the United States, UK, China, and Argentina. Telephone interviews were also conducted with individuals in France. There are written notes of each interview, but not recordings or verbatim transcripts. Compilation of data: Compiled archival data from the Chinese government, the International Chamber of Commerce, the New York Chamber of Commerce, the Chinese International Economic and Trade Arbitration Commission, and the Buenos Aires Stock Exchange arbitral mechanism. These data are kept as Excel spreadsheets. The data here encompass all original data sources for the project. Nothing has been excluded.