This book provides a detailed analysis of private-public arbitrations and their constitutional ramifications. Across twenty chapters and almost fourty jurisdictions, it evaluates how domestic legal systems safeguard public interest in arbitration, addressing concerns related to democracy, rule of law, and fundamental rights
This book engages with the concerns the rising phenomenon of arbitrations between private and public actors raises for principles of constitutional law - including democracy, the rule of law, and the protection of fundamental rights. It analyses how party-appointed, one-off arbitral tribunals determine the delineation of private rights and public interests within a transnational legal environment and provides a framework that aligns this activity with constitutional values.
Featuring 20 chapters dealing with almost 40 jurisdictions from different corners of the world, the book examines how domestic legal systems and legal practice approach the involvement of public entities as parties to arbitration agreements and arbitration proceedings, to what extent the constitutional legal frameworks involved problematize private-public arbitration as a constitutional concern, and how different domestic legal systems ensure that private-public arbitration conforms to, and avoids undermining, the public interest. The chapters analyse, inter alia, whether the governing domestic law treats private-public arbitration differently from commercial arbitration between private parties, to what extent domestic law permits such arbitrations, what regulatory frameworks domestic law sets up, and what control mechanisms domestic law establishes in order to ensure that the public interest is safeguarded when public entities agree to have disputes resolved through arbitration rather than in domestic courts.
1: Stephan W Schill: The Comparative Constitutional Foundations of
Private-Public Arbitration: An Introduction
Part I. Private-Public Arbitration in Europe
2: Stavros Brekoulakis and Margaret Devaney: Private-Public Arbitration in
English Law: The Splendid Isolation of Arbitration from Public Law
3: Florian Grisel: The Private-Public Divide and Its Influence over French
Arbitration Law: Tradition and Transition
4: Stephan W Schill and Nadine Berger: Eroding the Rule of Law through
Private-Public Arbitration? Constitutionalization of Private-Public
Arbitration in the German Legal System
5: Victor Ferreres Comella and Pol Fontboté Pradilla: Private-Public
Arbitration in Spain: Legislative Timidity in the Shadow of the Constitution
6: Nikolaos Askotiris: Private-Public Arbitration under Greek Law: A (Nearly
Complete) Public Law Paradigm
7: Csongor István Nagy: Can a State Swim against the Tide? Hungarian
Perspectives on Public-Private Arbitration
8: Egl:e Zemlyt:e, Tadas Varapnickas, Inga Ka%cevska, Aleksandrs Fillers,
Karin Sein, and Pirkka-Marja Põldvere: Protection of the Public Interest in
Private-Public Arbitration in the Baltic States
Part II. Private-Public Arbitration in the Americas and the Pacific
9: Peter B Rutledge: Whither Leviathan? The Seepage of Constitutional Law
into Public-Private Arbitration in the United States
10: Orlando Federico Cabrera Colorado and Andrea Orta González Sicilia: The
Extrinsic Factors of World Trade that Galvanized Mexican Public-Private
Arbitration during the Pre-NAFTA Years and the Evolution of Safeguards for
the Public Interest
11: Conway Blake: Reconciling Arbitral and Constitutional Governance: The
Critical Role of the (Caribbean) Courts
12: Diego P Fernández Arroyo, Francisco Amallo, and Ezequiel H Vetulli: The
Legitimacy of Private-Public Arbitration in Argentina and Its Slight, but Yet
Strong Differences with Private-Private Arbitration
Part III. Private-Public Arbitration in Asia, Africa, and Australia
13: Jamal Seifi and Kamal Javadi: Public-Private Arbitration in the Iranian
Legal System: The Intersection of Preferential Rights and Constitutional
Constraints on Arbitration
14: Tamar Meshel: The Attorney General as Guardian of the Public Interest and
the Evolution of Private-Public Arbitration in Israel
15: Ahmad Ghouri: Living on the Edge of Judicial Review: The Law and Practice
of Private-Public Arbitration in Pakistan
16: Manjiao Chi: China>'s Bifurcated Attitudes towards Private-Public
Arbitration
17: Jaemin Lee: Public Policy Dimensions of Public-Private Arbitration:
Recent Development and New Awareness in Korea
18: Dominic Npoanlari Dagbanja: The Constitutional and Public Interest
Foundations of Public-Private Arbitration in Ghana
19: Engela C Schlemmer: The Dichotomy of Arbitration with the State in South
Africa
20: Caroline Henckels: Private-Public Arbitration in Australia: Public Law
Concerns, Private Law Responses
Annex: Country Questionnaire
Stephan W. Schill is Professor of International and Economic Law and Governance at the University of Amsterdam, where he headed the European Research Council-funded research project 'Transnational Public-Private Arbitration as Global Regulatory Governance'. He is admitted to the bar in Germany and New York, is a Member of the ICSID List of Conciliators, and regularly acts as arbitrator in investor-state arbitrations. He also serves as General Editor of ICCA Publications and has published widely on international investment law, investor-state dispute settlement, general international law, EU law, and comparative public law.
