3 How to Identify GPL and Transpose Them on the International Plane

Subject(s):

General principles of international law — Arbitral tribunals — Incorporation — Transformation

This chapter focuses on how tribunals should identify general principles of law (GPL) grounded in States’ domestic laws and transpose them onto the international plane. This process involves three steps. The first step concerns the identification of a principle that is common to domestic legal orders. The chapter shows that a comparative analysis of domestic laws is the proper method of investigation and that this method does not require examining all laws, but rather to focus on the most representative legal systems. The second step (distillation) requires the investigator to find common features of a given principle under domestic laws while leaving aside national particularities and specificities existing under some of them. Finally, the chapter looks at a number of questions surrounding the third step of the analysis, which involves the adaptation and transposition of a principle into the international legal order.