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The chapter considers, on the one hand, the ways in which international arbitration was a source of inspiration for Philip Jessup when he elaborated the notion of transnational law. On the other hand, it considers how the notion of transnational law constitutes a relevant tool for the analysis of international arbitration. The chapter relies in particular on the documents gathered in the Philip C. Jessup Collection at the Library of Congress, which include early drafts and preparatory works for the Storrs Lectures at Yale University. It examines three discrete stories that each illustrate one salient aspect of the notion of transnational law (norms, actors and processes) and its relevance for the analysis of international arbitration.
The chapter introduces a collection of essays first presented at an international conference at the Transnational Law Institute, King’s College London. The authors engage Philip Jessup’s landmark study, “Transnational Law” (1956) and go well beyond that. Jessup’s book launched an analysis of the role that law plays for border-crossing human and institutional relations. But, the context in which Jessup wrote – as an international lawyer, an arbitrator and economic lawyer – is today one of global geopolitical change and domestic state transformation. Both render the interdisciplinary investigation into law’s role in a global context ever more crucial. “Transnational law” – as label, concept or methodology – occupies an important place in this undertaking, not as a marker of a new, self-standing doctrinal legal field, but as an opportunity to think about the foundations of law today in a volatile, deeply divided world. Transnational law becomes a methodological laboratory in which to study law’s relation to other forms of social ordering, its sources and norms, its actors and processes, its regulatory aspirations and democratic (and, other) infrastructures.
In 1956, ICJ judge Philip Jessup highlighted the gaps between private and public international law and the need to adapt the law to border-crossing problems. Today, sixty years later, we still ask what role transnational law can play in a deeply divided, post-colonial world, where multinationals hold more power and more assets than many nation states. In searching for suitable answers to pressing legal problems such as climate change law, security, poverty and inequality, questions of representation, enforcement, accountability and legitimacy become newly entangled. As public and private, domestic and international actors compete for regulatory authority, spaces for political legitimacy have become fragmented and the state's exclusivist claim to be law's harbinger and place of origin under attack. Against this background, transnational law emerges as a conceptual framework and method laboratory for a critical reflection on the forms, fora and processes of law making and law contestation today.
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