The field of international arbitration has proven to be fertile in theoretical debates. This entry will identify and analyse three major debates on the theory of international arbitration, starting at different points in the past with their underlying concepts continuing to overlap to this date.

First, various authors have sought to explore the nature of arbitration – whether it is a jurisdictional phenomenon, akin to court proceedings, or a creature of contract, where the agreement of the parties would be of paramount importance.

The second debate focused on whether international arbitration has a strictly local existence or whether it is “delocalised,” allowing the arbitrator to factor in legal systems other than that of the “seat.”

This debate, in turn, led to a third debate on whether there is an arbitral legal order, independent of any individual jurisdiction taken in isolation but interacting as such with State legal orders.

The entry shows that an awareness of these debates is essential to understanding international arbitration not only as a field of practice, but also as raising key questions of a theoretical and philosophical nature.

This chapter provides an overview of the third period in the modern history of international commercial arbitration. This period, which started in the 1950s, is the Age of Autonomy. It has been marked by at least three types of autonomy. The first is the autonomy of the mercatocracy, a distinct class of professionals who, having devoted an increasing amount of time and attention to international commercial arbitration, see themselves as experts in international arbitration. A second (and related) type of autonomy is that of the field as a whole. Lawyers, scholars, and professors who had hitherto considered international arbitration as a subcategory of civil procedure or international law started viewing the discipline as a full-fledged field of practice and research. The third kind of autonomy is that of the law expounded by these experts and academics through such concepts as lex mercatoria and the arbitral legal order, which can be seen as attempts to give arbitration a theoretical foundation and explain its development as a system of law in its own right.

This chapter explores the dynamics of renewal and anxiety in the context of the French school of international arbitration. It shows how, in the 1980s and 1990s, a new generation took the helm within the French school. Members of this second generation – who had been the students of leading members of the first generation and envisioned international commercial arbitration as a field of both research and practice – felt that the debates over lex mercatoria had led to important insights but did not sufficiently address fundamental questions, such as the source of the arbitrators’ power to adjudicate or the “juridicity” of international arbitration. At the same time, arbitration scholars – not just in France, but also in places such as England, Switzerland, and the United States – argued vigorously for and against the enforcement of awards set aside in the country of the seat. As explained in this chapter, the major contribution of the second generation of the French school was a theorization of the arbitral legal order, which led to a deeper sense of renewal for some and anxiety for others.

This chapter provides an overview of each of the book’s chapters and summarizes a key objective of the book, which was to identify three broad phases or periods in the modern history of international commercial arbitration: the Age of Aspirations, the Age of Institutionalization, and the Age of Autonomy. It also asks whether we are entering a new age in the modern history of international commercial arbitration – an Age of Disruption, where the tension between the mercatocracy and the State is exacerbated by unfamiliar circumstances that could threaten the integrity of the arbitration system as a whole. These circumstances include such phenomena as the rise of nationalism, the reemergence of protectionism, and broader fears about globalization. It points to what Judge Crawford described as a “risk of erosion in the current political climate,” and asks whether this “erosion” could signal a shift from the Age of Autonomy to the Age of Disruption.