In the late 1950s and early 1960s, the idea that a system of international commercial law was gradually replacing domestic laws in the sphere of international transactions began to interest a group of European scholars. Using a bygone expression, they called this phenomenon lex mercatoria, or “law merchant.” The exploration of lex mercatoria also coincided with the emergence of a full-fledged school of thought – what could be described as the French school of international arbitration. As this chapter shows, this was a time of intense renewal, which carried great appeal and led to bold, cutting-edge research. At the same time, vacillating between renewal and anxiety, many scholars strongly disagreed with the existence of lex mercatoria and voiced their disagreement. The first section of this chapter sketches the intellectual history of lex mercatoria; the second investigates its relationship with a nascent school of thought in international arbitration; and the third looks at the quarrels over lex mercatoria that marked the movement from renewal to anxiety.

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.