Thomas Schultz (King's College London – The Dickson Poon School of Law) has posted Legitimacy Pragmatism in International Arbitration: A Framework for Analysis (in Jean Kalicki and Mohamed Abdel Raouf (eds), Evolution and Adaptation: The Future of International Arbitration (ICCA Congress Series No. 20, Wolters Kluwer, 2019)) on SSRN. Here is the abstract:
This chapter makes the simple point that if arbitral lawmaking is not legitimate to the actors who can change that lawmaking, it will likely be unstable and change. Obvious as the point may sound, it helps frame legitimacy debates in international arbitration in a way that makes them practically valuable: it narrows them down to a zone of so-called “conceptual cash-value”.
Making that point requires to do two things. First, to decide what meaning is best given to the concept of “legitimacy”. Second, and on that basis, to develop an analytical framework to easily demarcate those actors whose legitimacy perspective matters from those whose perspective is irrelevant, regardless how ethically compelling it in itself may be. The chapter tackles these two things in turn and to do so reaches out to pragmatic philosophy, the legitimacy literature in international law, and political systems theories.