The Autonomous Theory Of International Commercial Arbitration: An Autopoietic Perspective

International commercial arbitration’s private, consensual, and confidential nature has rendered the mechanism one of the most preferred dispute resolution procedures for the settlement of international commercial disputes. Within the context of arbitration scholarship, private parties’ ability to decide on a wide range of issues pertaining to the arbitral process has paved the way for the development of an autonomous theory of arbitration. The autonomous theory’s main premise is that international commercial arbitration constitutes a legal system that operates independently from states and state laws and, therefore, should be treated as an autonomous legal system. However, while some practical arguments have been made in support of the theory, to date, the supporters of the autonomous theory of arbitration have failed to develop a solid theoretical framework upon which to base the theory.

The objective of this thesis is to present one such framework. This thesis proposes Niklas Luhmann’s autopoietic theory as the theoretical framework for the autonomous theory of arbitration. The underlying argument of this thesis is that the autopoietic theory is both suitable and appropriate to operate as the theoretical underpinning for the autonomous theory of arbitration. The autopoietic theory is the most frequently used systems theory in legal studies. However, the arbitration community has yet to see the potential in its application to international commercial arbitration. The autopoietic theory deals with both the notions of systematicity and autonomy of a unit. Each notion is an essential element in order for a unit to amount to an autonomous system.

Therefore, the thesis main objective is to validate the autonomous theory of arbitration by applying to international commercial arbitration the concepts and ideas that derive from the autopoietic theory.