# Arbitration

Florian Grisel

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Florian Grisel. Arbitration. Elgar Concise Encyclopedia of Sociology of Law, 2025. hal-05515100

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# Arbitration

*Florian Grisel*

Arbitration is a mode of dispute resolution that spans various historical periods and social contexts. Martin Shapiro places it on a continuum between mediation and adjudication and argues that its authority derives from a complex blend of private consent (typically through contractual agreement) and state recognition (Shapiro 1981). Contrary to the widespread belief in a functional evolution from arbitration to adjudication, numerous examples illustrate the persistence of arbitration in many different forms (Roberts 1983). In recent decades, socio-legal scholars have particularly focused on one of these forms: international arbitration, which has become the main method for the settlement of business disputes over the past few decades. As the importance of international arbitration has grown, so too has scholarly interest in it.

In what follows, I present four separate strands of socio-legal scholarship dealing with the following topics: (i) the emergence of international arbitration as a transnational legal order, (ii) the evolution of international arbitration and its judicialization, (iii) the social dynamics within the arbitral field, and (iv) the judicial politics of international arbitration.

## 1. The emergence of international arbitration as a transnational legal order

Yves Dezalay and Bryant Garth have played a pioneering role in analysing the emergence of international arbitration as a private justice system. In their famous analysis drawing on field theory, they highlight a conflict between two categories of elite actors – “grand old men” whose charismatic authority derives from their academic positions in the law schools of Continental Europe and “young technocrats” who draw rational authority from their practice of litigation in Anglo-American law firms (Dezalay and Garth 1996). According to Dezalay and Garth, this conflict has led to the Americanization of the global field of arbitration.

Another perspective, which is grounded in archival data, highlights the influence of marginalized actors (often migrant lawyers operating at the fringes of socio-legal systems such as common law and civil law traditions, and across various legal professions) in the emergence of international arbitration (Grisel 2017). While Dezalay and Garth insist on the centrality of zero-sum games arising from incompatibilities between elite members of well-defined national and professional groups, this branch of scholarship draws attention to cooperative processes involving marginalized actors operating at the intersections of socio-legal systems.

## 2. The evolution of international arbitration and its judicialization

Dezalay and Garth identified conflicts between “grand old men” and “young technocrats” as a key driver underlying the judicialization of international arbitration in the late 1970s/early 1980s – that is, the adoption of lawlike rules and structures.
Stone Sweet and Grisel extend this account by identifying a self-sustaining process of institutional evolution that has enhanced arbitral authority over a far longer timespan than the one identified by Dezalay and Garth (Stone Sweet and Grisel 2017). In doing so, Stone Sweet and Grisel examine how international arbitration actors have been active in building authority that has resulted in more streamlined processes, more cumbersome procedures, and quasi-legal rules.

**3. The social dynamics within the arbitral field**

Socio-legal scholars have also shown an interest in the social dynamics within the arbitral field. Scholars working on this topic have converged on the identification of a community of elite actors who control the distribution of cases and the appointment of arbitrators. These actors are routinely appointed to arbitrate or represent parties in these cases, without belonging to a "profession" in the traditional sense (Moreira 2022). They typically draw their authority from the dense networks to which they belong, which are key to understanding their pre-eminence within the field (Puig 2014). Additionally, they often accumulate and rotate through various positions – as either arbitrators, attorneys, experts, or members of arbitral institutions (Langford et al 2017). As a result of these intensive and close-knit interactions, some argue that a distinct set of values emerges within this small cadre of elite actors (Moreira 2022). Others argue that these values – a sort of "arbitration culture" – does not result from power struggles (as Dezalay and Garth have it) or intensive social interactions (as Moreira argues), but from the mere "anticompetitive impulse of those already in business" (Ginsburg 2003).

**4. The judicial politics of international arbitration**

The politics of arbitration is another promising avenue of research for socio-legal scholarship on international arbitration. Some authors have identified the existence of a complex relationship between the arbitral order and national legal systems, with the latter typically investing in a system whose primary aim is to gain further autonomy (Stone Sweet and Grisel 2017). Mark Massoud contributed to the analysis of this paradox by showing how illiberal regimes deflect attention from their oft-dysfunctional court systems by promoting international arbitration (Massoud 2014).

The above notice gives an overview of the socio-legal scholarship on international arbitration. In doing so, it seeks to provide a broad, yet necessarily incomplete, assessment of this scholarship, in the hope that it will inspire further analyses of this important dispute settlement method.

**References:**

Dezalay, Y. and Garth, B.G. (1996). *Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order*, Chicago, University of Chicago Press
Ginsburg, T., “The Culture of Arbitration” (2003) 36 Vanderbilt Journal of Transnational Law 1335-1346

Grisel, F. (2017) “Competition and Cooperation in International Commercial Arbitration: The Birth of a Transnational Legal Profession” 51/4 Law & Society Review 790-824

Langford, M., Behn, D., and Lie, R.H. (2017) “The Revolving Door in International Investment Arbitration” 20 Journal of International Economic Law 301-331

Massoud, M.F. (2014) “International Arbitration and Judicial Politics in Authoritarian States” (2014) 39/1 Law & Social Inquiry 1-30

Moreira, J.I. (2022) “Arbitration vis-à-vis other professions: a sociology of professions account of international commercial arbitrators” (2022) 49 Journal of Law and Society 48-70

Puig, S. (2014) “Social Capital in the Arbitration Market” (2014) 25/2 European Journal of International Law 387-424

Roberts, S. (1983) “The Study of Dispute: Anthropological Perspectives,” In J. Bossy (ed.) *Disputes and Settlements*, Cambridge, Cambridge University Press, 1-24.

Shapiro, M. (1982). *Courts: A Comparative and Political Analysis*, Chicago, University of Chicago Press.

Stone Sweet, A. and Grisel F. (2017). *The Evolution of International Arbitration: Judicialization, Governance, Legitimacy*, Oxford, Oxford University Press.