Secondary Rules of Recognition and Relative Legality in Transnational Regimes

Abstract

Understanding the nature and contours of transnational legality is an important challenge, as it may bear on the place that transnational law should be given within the existing frameworks of public and private international law. This article discusses three questions, which have emerged in the field of international arbitration and are primarily of a philosophical nature, that help us understand certain aspects of transnational legality: (1) What is the role of social conventions among international adjudicators for the development of transnational regimes? (2) What are the ethical considerations connected to the recognition as law of one or several transnational arbitral regimes? (3) What are the legal consequences of the recognition as law of one or several transnational arbitral regimes? These three questions shed light on the nature and role of secondary rules of recognition in transnational regimes and on the distinction between relative legality (what a legal system considers to be law, its own or that of other systems) and absolute legality (what a neutral observer considers to be law).

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