The Private Dimension of the International Customary Nature of Commercial Arbitration

While it is true that only states are capable of sanctioning rules of customary international law, little attention has been given to the formulation of some rules by private actors prior to official sanctioning. In the sphere of commercial arbitration, states may dictate the general framework, but are generally unable and at times reluctant to involve themselves in the shaping of industrial or commercial practices. As a result, states either ratify commercial customs by ascribing to them normative validity through the courts or by reference to a general law, without naming any particular practice. In this manner, the commercial practice becomes the practice of the state validating it, whether as usus or opinio juris and consequently binds the state in its future relations. Equally, where commercial practice is validated by more than one state, it assumes a transnational character and enters the realm of either global or regional customary international law.