My last book: https://www.bloomsburyprofessional.com/uk/the-limits-of-private-governance-9781509938155/
The International Court of Justice (ICJ), often referred to as the "World Court," plays a central... more The International Court of Justice (ICJ), often referred to as the "World Court," plays a central role in the field of international law. Despite the significance of this court, socio-legal scholarship has not examined the ICJ's inner workings due to limited access. Drawing from field theory and organizational theory, this study addresses this gap by using various data sources including interviews, organizational documents, and publicly available texts from insiders. Based on this data, this article explores how the ICJ's institutional context shapes its organization and the experiences of its actors. We argue that the ICJ provides a space that tightly connects institutional myths, organizational practices, and individual action. This tight coupling effectively mediates and manages differences amongst ICJ actors, fostering a stable practice of international law within a field otherwise marked by conflict. This enables the ICJ to produce and sustain a specific way of doing international law which has stabilizing effects in this field. By linking the macro level of the field-an area emphasized in prior scholarship-with a micro-level organizational perspective, this article offers a nuanced understanding of the conflicts and organizational practices influencing the ICJ's operations and development of international law.
This paper revisits the sociology of international commercial arbitration on the
basis of unexpl... more This paper revisits the sociology of international commercial arbitration on the
basis of unexploited archives and data. This material casts new light on the
competition between “grand old men” and “young technocrats” in the 1980s
and 1990s, a theme that has structured the analysis of international commercial
arbitration since the pioneering work of Yves Dezalay and Bryant G. Garth
(Dealing in Virtue). In contrast, the data show that the crucial transformative
period actually took place between the 1950s and 1970s, when a relatively welldefined
group of individuals emerged as the leading arbitrators at the International
Chamber of Commerce. These individuals— the “secant marginals”—
succeeded in constructing a cooperative interface (rather than competition)
between otherwise separate legal systems and professions. In doing so, they created
the conditions necessary for the emergence of a new transnational legal
profession. At a more general level, the article proposes an alternative narrative
of globalization, wherein actors operating at the intersection of various systems,
create new arenas of governance on the basis of inter-system cooperation.
The major aim of this article is to examine how migrations affect private governance, taking as a... more The major aim of this article is to examine how migrations affect private governance, taking as a case study the Prud'homie de pêche, a private order that has governed the fishery of Marseille for the past six centuries. Scholarship generally argues that social norms guarantee the efficiency of private orders and their ability to resist the arrival of newcomers. My data suggests that the Prud'homie has failed to accommodate social changes prompted by migratory flows, not despite but because of its social norms. This paper suggests that social norms are not only powerful tools of governance for private orders, but also forces of inertia that can prevent these orders from accommodating social changes.
This paper examines how social capital affects the resolution of disputes by focusing on English ... more This paper examines how social capital affects the resolution of disputes by focusing on English Wikipedia's Arbitration Committee, sometimes described as "Wikipedia's Supreme Court." Drawing on quantitative and qualitative data, the paper contends that the Arbitration Committee not only examines the merits of the claims made by the disputants, but also and more crucially considers the position of each disputant within the community of editors in its decision-making process. In doing so, the Arbitration Committee does not simply decide or arbitrate disputes but seeks to attenuate their impact on Wikipedia's social fabric. This data allows us to revisit sociological debates on the role of social capital, by revealing the ways in which well-connected individuals employ it strategically in order to obfuscate their noncompliance with norms, thus leading to what I call "dispute cancellation."
This paper offers a socio-historical study of the Prud’homie de pêche (the “Prud’homie”), a commo... more This paper offers a socio-historical study of the Prud’homie de pêche (the “Prud’homie”), a common-pool institution (“CPI”) that has managed the fishery commons at Marseille since the Middle Ages. The evidence presented here sheds light on specific challenges faced by the Prud’homie during the early stages of globalisation: one challenge is the import of a new fishing technique (the madrague) in the early 17th century, and another challenge is the arrival of migrant fishermen from Catalonia throughout the 18th century. On this basis, this paper explores the ways in which globalisation has impacted the Prud’homie and identifies the mechanisms through which these challenges might threaten the functioning of CPIs.
The bulk of the literature on transnational governance focuses on the bottom-up emergence of priv... more The bulk of the literature on transnational governance focuses on the bottom-up emergence of private rules, neglecting top-down processes such as treaty-making. This article seeks to remedy this gap, using original archival material to show how a transnational network of experts associated with the International Chamber of Commerce influenced the negotiations of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), and its final content. In doing so, this article analyzes the ways in which the complex allegiances developed within the International Chamber of Commerce enabled it to match public authority and private interests in a transnational legal process where states no longer held a monopoly.
Cambridge Compendium on International Commercial and Investment Arbitration , 2023
The basic mechanism of appointing a third party to settle disputes cuts across societies and time... more The basic mechanism of appointing a third party to settle disputes cuts across societies and time periods. Agamemnon settled the dispute between Ajax and Ulysses over the armour of Achilles by organising a contest between the two soldiers. 1 Similarly, Thucydides noted the numerous attempts to settle disputes between Greek city-states through arbitration during the Peloponnesian War. 2 Social scientists and lawyers have highlighted the ways in which dispute settlement processes akin to arbitration have existed in various social groups at different stages of human history. 3 In the past centuries, arbitration has been used to solve disputes between traders, companies, states, and private individuals. Famous examples include the development of arbitration as a dispute settlement mechanism among traders in the Middle Ages, 4 states after the late eighteenth century, 5 and within trade associations starting in the nineteenth century. 6 Although arbitration has a rich past as a dispute settlement method, efforts to retrace its history have been sporadic and limited. 7 These difficulties probably arise from the dauntingand perhaps impossible 8 -task of extracting common institutional features from the various historical and legal contexts in which these features have arisen. 9
This article challenges the dominant perspective centred around the figure of the nation-state by... more This article challenges the dominant perspective centred around the figure of the nation-state by placing emphasis on what is usually perceived to be the margins of transnational law. Based on a review of the vibrant scholarship in the socio-legal literature, this paper sketches the features of social facts that can be found in the interstices of national legal systems and professions. Although these facts are marginalised from the perspective of these systems and professions, their role is no less real in the global arena, in whose centres they are situated. The study of these facts raises methodological questions that this article seeks to address. By attempting to shift the research focus from one object to another, in particular, this article casts light on methodological debates concerning the need to define research categories on a preliminary basis.
La période allant de 1920 à 1958 est une phase essentielle dans la construction de l’arbitrage co... more La période allant de 1920 à 1958 est une phase essentielle dans la construction de l’arbitrage commercial international. L’histoire de cette construction coïncide pour une large part avec celle de la CCI, devenue la principale institution d’arbitrage dans le monde au cours de cette période. L’émergence de la CCI n’a pourtant pas été aisée. Elle s’est faite grâce à une politique habile mêlant des considérations pragmatiques à l’idéalisme de ses fondateurs. La signature de la Convention de New York, point d’orgue d’une démarche entreprise plus de trois décennies auparavant, révèle que la CCI a su prêter une attention particulière aux besoins des usagers tout en promouvant une vision d’ensemble de l’arbitrage commercial international.
This chapter suggests how transnational legal theory provides a relevant analytical frame to capt... more This chapter suggests how transnational legal theory provides a relevant analytical frame to capture the norms and processes of international arbitration. I first examine the longstanding academic debates over lex mercatoria before turning to the dominant socio-legal analysis of international arbitration brought by Yves Dezalay and Bryant G. Garth. Both examples illustrate the extent to which the analytical frames furnished by legal scholars are grounded in representations that ought to be transcended for a better understanding of the global world.
Oxford Handbook of International Arbitration, 2017
This chapter sheds light on a field that has raised significant interest in recent years: 1 the s... more This chapter sheds light on a field that has raised significant interest in recent years: 1 the sociology of individuals who are routinely appointed as international arbitrators to settle the important business disputes that commonly arise in transnational settings. These individuals serve as the private judges of global business law, and their governance functions have grown together with the growth of international arbitration, which is now the preferred method for resolving these disputes. 2 The private nature of these appointments and the creation of a closed group of elite arbitrators (sometimes described as a "mafia") have raised important concerns within civil society. 3 This chapter builds upon prior research on the sociological evolution of international commercial arbitration [ICA] and extends it -on the basis of original data -to investor-state arbitration [ISA]. The data referred to herein are drawn from an exhaustive review of the appointments of arbitrators at the International Centre for Settlement of Investment Disputes [ICSID] since 1972. ICSID is arguably is the most important global institution operating in ISA.
Hatting," Malcolm Langford presents findings that complement his own previous article on "The Rev... more Hatting," Malcolm Langford presents findings that complement his own previous article on "The Revolving Door in International Investment Arbitration." 1 In his most recent paper, Langford argues that "[t]he rising democratization of investment arbitration is challenging traditional theories on appointment of international investment arbitrators." 2 His main claim is that the "public law critiques of international investment arbitration" are leading to the "potential changing sociology of appointment." 3 By "potential changing sociology of appointment," Langford has in mind the decline of "double hatting," and suggests the existence of two causal relationships in this regard: (i) public critiques of "double hatting" impact the practices of actors in the field, who increasingly avoid acting as counsel and arbitrator in parallel cases; (ii) this decline of "double hatting" is associated with the emergence of a new "moral economy" (or a "changing sociology") in the investment arbitration market. My comments below focus on the data put forward by Langford in support of his claims, his explanation of "double hatting" and my own tentative explanation of this phenomenon.
ICSID Review: Foreign Investment Law Journal, 2007
Recent efforts of civil law systems to incorporate the common law notion of the amicus curiae ref... more Recent efforts of civil law systems to incorporate the common law notion of the amicus curiae reflect a broader trend in judicial and arbitral practice of delivering justice in a manner that is more attentive to the interests of civil society. The acceptance of amicus curiae submissions by ICSID tribunals has also followed a perceptible trend in this direction, and while the extent and application of such practice have not been fully explored, the principle of acceptance is no longer in doubt.
The International Court of Justice (ICJ), often referred to as the "World Court," plays a central... more The International Court of Justice (ICJ), often referred to as the "World Court," plays a central role in the field of international law. Despite the significance of this court, socio-legal scholarship has not examined the ICJ's inner workings due to limited access. Drawing from field theory and organizational theory, this study addresses this gap by using various data sources including interviews, organizational documents, and publicly available texts from insiders. Based on this data, this article explores how the ICJ's institutional context shapes its organization and the experiences of its actors. We argue that the ICJ provides a space that tightly connects institutional myths, organizational practices, and individual action. This tight coupling effectively mediates and manages differences amongst ICJ actors, fostering a stable practice of international law within a field otherwise marked by conflict. This enables the ICJ to produce and sustain a specific way of doing international law which has stabilizing effects in this field. By linking the macro level of the field-an area emphasized in prior scholarship-with a micro-level organizational perspective, this article offers a nuanced understanding of the conflicts and organizational practices influencing the ICJ's operations and development of international law.
This paper revisits the sociology of international commercial arbitration on the
basis of unexpl... more This paper revisits the sociology of international commercial arbitration on the
basis of unexploited archives and data. This material casts new light on the
competition between “grand old men” and “young technocrats” in the 1980s
and 1990s, a theme that has structured the analysis of international commercial
arbitration since the pioneering work of Yves Dezalay and Bryant G. Garth
(Dealing in Virtue). In contrast, the data show that the crucial transformative
period actually took place between the 1950s and 1970s, when a relatively welldefined
group of individuals emerged as the leading arbitrators at the International
Chamber of Commerce. These individuals— the “secant marginals”—
succeeded in constructing a cooperative interface (rather than competition)
between otherwise separate legal systems and professions. In doing so, they created
the conditions necessary for the emergence of a new transnational legal
profession. At a more general level, the article proposes an alternative narrative
of globalization, wherein actors operating at the intersection of various systems,
create new arenas of governance on the basis of inter-system cooperation.
The major aim of this article is to examine how migrations affect private governance, taking as a... more The major aim of this article is to examine how migrations affect private governance, taking as a case study the Prud'homie de pêche, a private order that has governed the fishery of Marseille for the past six centuries. Scholarship generally argues that social norms guarantee the efficiency of private orders and their ability to resist the arrival of newcomers. My data suggests that the Prud'homie has failed to accommodate social changes prompted by migratory flows, not despite but because of its social norms. This paper suggests that social norms are not only powerful tools of governance for private orders, but also forces of inertia that can prevent these orders from accommodating social changes.
This paper examines how social capital affects the resolution of disputes by focusing on English ... more This paper examines how social capital affects the resolution of disputes by focusing on English Wikipedia's Arbitration Committee, sometimes described as "Wikipedia's Supreme Court." Drawing on quantitative and qualitative data, the paper contends that the Arbitration Committee not only examines the merits of the claims made by the disputants, but also and more crucially considers the position of each disputant within the community of editors in its decision-making process. In doing so, the Arbitration Committee does not simply decide or arbitrate disputes but seeks to attenuate their impact on Wikipedia's social fabric. This data allows us to revisit sociological debates on the role of social capital, by revealing the ways in which well-connected individuals employ it strategically in order to obfuscate their noncompliance with norms, thus leading to what I call "dispute cancellation."
This paper offers a socio-historical study of the Prud’homie de pêche (the “Prud’homie”), a commo... more This paper offers a socio-historical study of the Prud’homie de pêche (the “Prud’homie”), a common-pool institution (“CPI”) that has managed the fishery commons at Marseille since the Middle Ages. The evidence presented here sheds light on specific challenges faced by the Prud’homie during the early stages of globalisation: one challenge is the import of a new fishing technique (the madrague) in the early 17th century, and another challenge is the arrival of migrant fishermen from Catalonia throughout the 18th century. On this basis, this paper explores the ways in which globalisation has impacted the Prud’homie and identifies the mechanisms through which these challenges might threaten the functioning of CPIs.
The bulk of the literature on transnational governance focuses on the bottom-up emergence of priv... more The bulk of the literature on transnational governance focuses on the bottom-up emergence of private rules, neglecting top-down processes such as treaty-making. This article seeks to remedy this gap, using original archival material to show how a transnational network of experts associated with the International Chamber of Commerce influenced the negotiations of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), and its final content. In doing so, this article analyzes the ways in which the complex allegiances developed within the International Chamber of Commerce enabled it to match public authority and private interests in a transnational legal process where states no longer held a monopoly.
Cambridge Compendium on International Commercial and Investment Arbitration , 2023
The basic mechanism of appointing a third party to settle disputes cuts across societies and time... more The basic mechanism of appointing a third party to settle disputes cuts across societies and time periods. Agamemnon settled the dispute between Ajax and Ulysses over the armour of Achilles by organising a contest between the two soldiers. 1 Similarly, Thucydides noted the numerous attempts to settle disputes between Greek city-states through arbitration during the Peloponnesian War. 2 Social scientists and lawyers have highlighted the ways in which dispute settlement processes akin to arbitration have existed in various social groups at different stages of human history. 3 In the past centuries, arbitration has been used to solve disputes between traders, companies, states, and private individuals. Famous examples include the development of arbitration as a dispute settlement mechanism among traders in the Middle Ages, 4 states after the late eighteenth century, 5 and within trade associations starting in the nineteenth century. 6 Although arbitration has a rich past as a dispute settlement method, efforts to retrace its history have been sporadic and limited. 7 These difficulties probably arise from the dauntingand perhaps impossible 8 -task of extracting common institutional features from the various historical and legal contexts in which these features have arisen. 9
This article challenges the dominant perspective centred around the figure of the nation-state by... more This article challenges the dominant perspective centred around the figure of the nation-state by placing emphasis on what is usually perceived to be the margins of transnational law. Based on a review of the vibrant scholarship in the socio-legal literature, this paper sketches the features of social facts that can be found in the interstices of national legal systems and professions. Although these facts are marginalised from the perspective of these systems and professions, their role is no less real in the global arena, in whose centres they are situated. The study of these facts raises methodological questions that this article seeks to address. By attempting to shift the research focus from one object to another, in particular, this article casts light on methodological debates concerning the need to define research categories on a preliminary basis.
La période allant de 1920 à 1958 est une phase essentielle dans la construction de l’arbitrage co... more La période allant de 1920 à 1958 est une phase essentielle dans la construction de l’arbitrage commercial international. L’histoire de cette construction coïncide pour une large part avec celle de la CCI, devenue la principale institution d’arbitrage dans le monde au cours de cette période. L’émergence de la CCI n’a pourtant pas été aisée. Elle s’est faite grâce à une politique habile mêlant des considérations pragmatiques à l’idéalisme de ses fondateurs. La signature de la Convention de New York, point d’orgue d’une démarche entreprise plus de trois décennies auparavant, révèle que la CCI a su prêter une attention particulière aux besoins des usagers tout en promouvant une vision d’ensemble de l’arbitrage commercial international.
This chapter suggests how transnational legal theory provides a relevant analytical frame to capt... more This chapter suggests how transnational legal theory provides a relevant analytical frame to capture the norms and processes of international arbitration. I first examine the longstanding academic debates over lex mercatoria before turning to the dominant socio-legal analysis of international arbitration brought by Yves Dezalay and Bryant G. Garth. Both examples illustrate the extent to which the analytical frames furnished by legal scholars are grounded in representations that ought to be transcended for a better understanding of the global world.
Oxford Handbook of International Arbitration, 2017
This chapter sheds light on a field that has raised significant interest in recent years: 1 the s... more This chapter sheds light on a field that has raised significant interest in recent years: 1 the sociology of individuals who are routinely appointed as international arbitrators to settle the important business disputes that commonly arise in transnational settings. These individuals serve as the private judges of global business law, and their governance functions have grown together with the growth of international arbitration, which is now the preferred method for resolving these disputes. 2 The private nature of these appointments and the creation of a closed group of elite arbitrators (sometimes described as a "mafia") have raised important concerns within civil society. 3 This chapter builds upon prior research on the sociological evolution of international commercial arbitration [ICA] and extends it -on the basis of original data -to investor-state arbitration [ISA]. The data referred to herein are drawn from an exhaustive review of the appointments of arbitrators at the International Centre for Settlement of Investment Disputes [ICSID] since 1972. ICSID is arguably is the most important global institution operating in ISA.
Hatting," Malcolm Langford presents findings that complement his own previous article on "The Rev... more Hatting," Malcolm Langford presents findings that complement his own previous article on "The Revolving Door in International Investment Arbitration." 1 In his most recent paper, Langford argues that "[t]he rising democratization of investment arbitration is challenging traditional theories on appointment of international investment arbitrators." 2 His main claim is that the "public law critiques of international investment arbitration" are leading to the "potential changing sociology of appointment." 3 By "potential changing sociology of appointment," Langford has in mind the decline of "double hatting," and suggests the existence of two causal relationships in this regard: (i) public critiques of "double hatting" impact the practices of actors in the field, who increasingly avoid acting as counsel and arbitrator in parallel cases; (ii) this decline of "double hatting" is associated with the emergence of a new "moral economy" (or a "changing sociology") in the investment arbitration market. My comments below focus on the data put forward by Langford in support of his claims, his explanation of "double hatting" and my own tentative explanation of this phenomenon.
ICSID Review: Foreign Investment Law Journal, 2007
Recent efforts of civil law systems to incorporate the common law notion of the amicus curiae ref... more Recent efforts of civil law systems to incorporate the common law notion of the amicus curiae reflect a broader trend in judicial and arbitral practice of delivering justice in a manner that is more attentive to the interests of civil society. The acceptance of amicus curiae submissions by ICSID tribunals has also followed a perceptible trend in this direction, and while the extent and application of such practice have not been fully explored, the principle of acceptance is no longer in doubt.
Librairie Générale de Droit et de jurisprudence PRÉFACE C'est un ouvrage original et rare que M. ... more Librairie Générale de Droit et de jurisprudence PRÉFACE C'est un ouvrage original et rare que M. Florian Grisel propose dans les pages qui suivent. Cet ouvrage est issu de la thèse pour le doctorat en droit qu'il a présentée et soutenue le 15 octobre 2010 devant un jury constitué des professeurs
The (Comparative) Constitutional Law of Private-Public Arbitration (Oxford University Press)
The private-public divide is a distinguishing feature of French law. 1 This divide echoes an anci... more The private-public divide is a distinguishing feature of French law. 1 This divide echoes an ancient distinction between legal relationships among 'equals' (regulated by private law) and legal relationships among 'unequals' (regulated by public law). 2 It also mirrors another distinction of a jurisdictional nature between 'civil' courts and 'administrative' courts, which was inherited from the French Revolution. Indeed, the Revolutionaries nurtured a solid distrust for courts, caused by the abuses of the royal courts (called 'parlements'), which acted as appellate courts and local legislators before the Revolution. 3 These 'parlements' were accused of overstepping into the realm of the executive branch by creating local customs and norms through so-called 'arrêts de règlements' (regulatory judgments) 4 and by interfering with the royal administration. 5 As pointed out by Merryman and Perez-Perdomo, the courts were 'targets of the Revolution.' 6 In order to limit the powers of judges, the Revolutionaries tried to strictly separate the executive from the judicial branch. Specifically, the Statute of 16/24 August 1790 insulated 'judicial' from 'administrative' functions. It forbade courts from 'troubling, in any way whatsoever, the operations of administrative bodies, or citing before them administrators in connection with their functions.' 7 The executive branch was therefore insulated from judicial review, and the judicial branch was deprived of the
Uploads
Papers by Florian Grisel
basis of unexploited archives and data. This material casts new light on the
competition between “grand old men” and “young technocrats” in the 1980s
and 1990s, a theme that has structured the analysis of international commercial
arbitration since the pioneering work of Yves Dezalay and Bryant G. Garth
(Dealing in Virtue). In contrast, the data show that the crucial transformative
period actually took place between the 1950s and 1970s, when a relatively welldefined
group of individuals emerged as the leading arbitrators at the International
Chamber of Commerce. These individuals— the “secant marginals”—
succeeded in constructing a cooperative interface (rather than competition)
between otherwise separate legal systems and professions. In doing so, they created
the conditions necessary for the emergence of a new transnational legal
profession. At a more general level, the article proposes an alternative narrative
of globalization, wherein actors operating at the intersection of various systems,
create new arenas of governance on the basis of inter-system cooperation.
basis of unexploited archives and data. This material casts new light on the
competition between “grand old men” and “young technocrats” in the 1980s
and 1990s, a theme that has structured the analysis of international commercial
arbitration since the pioneering work of Yves Dezalay and Bryant G. Garth
(Dealing in Virtue). In contrast, the data show that the crucial transformative
period actually took place between the 1950s and 1970s, when a relatively welldefined
group of individuals emerged as the leading arbitrators at the International
Chamber of Commerce. These individuals— the “secant marginals”—
succeeded in constructing a cooperative interface (rather than competition)
between otherwise separate legal systems and professions. In doing so, they created
the conditions necessary for the emergence of a new transnational legal
profession. At a more general level, the article proposes an alternative narrative
of globalization, wherein actors operating at the intersection of various systems,
create new arenas of governance on the basis of inter-system cooperation.