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1 - The Liberal Case for Arbitration

from Part I - Arbitration and Private Law

Published online by Cambridge University Press:  11 March 2021

Victor Ferreres Comella
Affiliation:
Universitat Pompeu Fabra, Barcelona
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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.

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Publisher: Cambridge University Press
Print publication year: 2021

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