Formal and legal basis for the institutionalisation of international commercial arbitration: 100 years of experience

Abstract

The article reveals the formal-legal basis for the institutionalisation of international commercial arbitration. It is found that states are still far from a unified understanding of the basic scope of human rights, but they have a clear common vision of the mechanism for protecting the interests of international commerce. Against the background of the economic and innovative successes of the EU and other countries in the world that have made human rights a priority, it would appear that the source of modern transnational trade problems lies precisely in another group of states in which commercial interests dominate human rights. This second type of state nourishes its development at the expense of the innovations of the first type of state, its constructive and passionate representatives. Innovative solutions are formulated by the freest people, whose freedom is legally and organisationally guaranteed, which becomes a source of release for their creative, productive existential energy. Therefore, the contradictions between these two types of entrepreneurs of nations give rise to commercial disputes regarding the path of development, as well as legal conflicts within each of these types of nations regarding the vector of development or decline. Strategically, it is an ontology of modern problems of international commercial disputes. It is emphasised that the institutionalisation of international commercial arbitration is conceived as the creation of legal models for interpretation, determination of cause-effect relations, assessment of all essential circumstances of commercial relations, about which the parties of this type of social interaction have not reached an agreement and are forced to turn to mediators, to whom they entrust jurisdiction over the dispute between them. It was noted that the legal reality of the institutionalisation of international commercial arbitration reflects the path of human development, which at the present stage is marked by crisis. Logical, rational, clear law is in a permanent process of critical evaluation of the synergy of creative, risky, adventurous, pragmatic entrepreneurship. Ideal legal models absorb the constructive activity of entrepreneurship, foreseeing its long-term prospects as positive. At the same time, it is the task of lawyers to reject those types of economic relationships that threaten common humanity. In conclusion, the UN Commission on International Trade Law is the only global body designed to ensure the optimal course of correlation processes between private international law and transnational commercial activity. At the same time, however, this Commission suffers from all the consequences of the UN's dysfunction. This is particularly evident in the UN's inability to prevent wars, famines, environmental disasters, military crimes and other global crises. It is advisable for the states to create a separate organisation in which they can coordinate their legal standards of joint entrepreneurship in the extractive industries, production, trade, finance, as well as the global environmental, national economic and other consequences of commercial projects. This organisation would become a convenient platform for honest parity in the unification of the legal practice of transnational entrepreneurship and the settlement of its disputes, based on the legal customs and traditions of different nations. This would provide a significant impetus for the healthy creation and application of international private law, capable of determining the vector both of global progress and of appropriate transformations in domestic national economic policies.