Merchants of Law as Moral Entrepreneurs: Constructing International Justice from the Competition for Transnational Business Disputes

Abstract

Over the past 20 years, international commercial arbitration has been transformed and institutionalized as the leading contractual method for the resolution of transnational commercial disputes. It has become an important institution of the growing international market. Although the process is far from unidirectional, this work of social construction can be described as a rationalization in the Weberian sense and also as an “Americanization” that has permitted U.S. litigators to shape the rules to favor their adversarial skills and approaches. An informal justice system has come increasingly to resemble “offshore litigation.” Drawing on Bourdieu's analytical tool of the legal “field” and, in particular, using the notion of an “international legal field,” this case study reveals how the continuing competition for business and for legitimacy—between civil law and common law, “grand old men” and “technocrats,” academics and practitioners—constructs and transforms the system of (international private) justice. As is true generally with respect to law, the details of the competition serve to build the careers of practitioners, to develop the area of practice, and to produce and legitimate the relevant “law.”