Book contents
- The Constitution of Arbitration
- Comparative Constitutional Law and Policy
- The Constitution of Arbitration
- Copyright page
- Dedication
- Contents
- Acknowledgments
- Introduction
- Part I Arbitration and Private Law
- 1 The Liberal Case for Arbitration
- 2 Constitutionalizing the Right to Arbitration
- 3 Boundaries and Constraints
- 4 Arbitration and the Lawmaking Process
- 5 The Special Case of International Commercial Arbitration
- Part II Investment Treaty Arbitration
- Part III State-to-State Arbitration
- Index
1 - The Liberal Case for Arbitration
from Part I - Arbitration and Private Law
Published online by Cambridge University Press: 11 March 2021
- The Constitution of Arbitration
- Comparative Constitutional Law and Policy
- The Constitution of Arbitration
- Copyright page
- Dedication
- Contents
- Acknowledgments
- Introduction
- Part I Arbitration and Private Law
- 1 The Liberal Case for Arbitration
- 2 Constitutionalizing the Right to Arbitration
- 3 Boundaries and Constraints
- 4 Arbitration and the Lawmaking Process
- 5 The Special Case of International Commercial Arbitration
- Part II Investment Treaty Arbitration
- Part III State-to-State Arbitration
- Index
Summary
In a liberal political regime, individuals are accorded a basic right to private autonomy. Individuals are assumed to be the best judges of their own interests in most contexts, under appropriate conditions of rationality. They can thus enter into legal relationships with others and shape the content of those relationships in the form of specific rights and obligations. Private autonomy supports the recognition of the right to arbitration. Private parties should be entitled to opt for arbitration to settle controversies involving their own interests. Arbitration, moreover, offers potential advantages over litigation in court, having to do with specialization and expertise, procedural flexibility, speed, privacy and confidentiality. Arbitration is grounded in private autonomy, not on utilitarian considerations. The right to arbitration is not absolute, of course. The state is authorized to place restrictions on it, in the name of public interests and values. But the state bears a burden of justification.
Keywords
- Type
- Chapter
- Information
- The Constitution of Arbitration , pp. 9 - 30Publisher: Cambridge University PressPrint publication year: 2021