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The Comparative Constitutional Foundations of Private-Public Arbitration

The Comparative Constitutional Foundations of Private-Public Arbitration

Author: Stephan W. Schill
Publisher: Oxford University Press
ISBN: 9780198876687
Published In: May 2025
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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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:The Comparative Constitutional Foundations of Private-Public Arbitration: An Introduction, Stephan W Schill

Part I. Private-Public Arbitration in Europe

2:Private-Public Arbitration in English Law: The Splendid Isolation of Arbitration from Public Law, Stavros Brekoulakis and Margaret Devaney

3:The Private-Public Divide and Its Influence over French Arbitration Law: Tradition and Transition, Florian Grisel

4:Eroding the Rule of Law through Private-Public Arbitration? Constitutionalization of Private-Public Arbitration in the German Legal System, Stephan W Schill and Nadine Berger

5:Private-Public Arbitration in Spain: Legislative Timidity in the Shadow of the Constitution, Victor Ferreres Comella and Pol Fontboté Pradilla

6:Private-Public Arbitration under Greek Law: A (Nearly Complete) Public Law Paradigm, Nikolaos Askotiris

7:Can a State Swim against the Tide? Hungarian Perspectives on Public-Private Arbitration, Csongor István Nagy

8:Protection of the Public Interest in Private-Public Arbitration in the Baltic States, Eglė Zemlytė, Tadas Varapnickas, Inga Kačevska, Aleksandrs Fillers, Karin Sein, and Pirkka-Marja Põldvere

Part II. Private-Public Arbitration in the Americas and the Pacific

9:Whither Leviathan? The Seepage of Constitutional Law into Public-Private Arbitration in the United States, Peter B Rutledge

10: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, Orlando Federico Cabrera Colorado and Andrea Orta González Sicilia

11:Reconciling Arbitral and Constitutional Governance: The Critical Role of the (Caribbean) Courts, Conway Blake

12:The Legitimacy of Private-Public Arbitration in Argentina and Its Slight, but Yet Strong Differences with Private-Private Arbitration, Diego P Fernández Arroyo, Francisco Amallo, and Ezequiel H Vetulli

Part III. Private-Public Arbitration in Asia, Africa, and Australia

13:Public-Private Arbitration in the Iranian Legal System: The Intersection of Preferential Rights and Constitutional Constraints on Arbitration, Jamal Seifi and Kamal Javadi

14:The Attorney General as Guardian of the Public Interest and the Evolution of Private-Public Arbitration in Israel, Tamar Meshel

15:Living on the Edge of Judicial Review: The Law and Practice of Private-Public Arbitration in Pakistan, Ahmad Ghouri

16:China’s Bifurcated Attitudes towards Private-Public Arbitration, Manjiao Chi

17:Public Policy Dimensions of Public-Private Arbitration: Recent Development and New Awareness in Korea, Jaemin Lee

18:The Constitutional and Public Interest Foundations of Public-Private Arbitration in Ghana, Dominic Npoanlari Dagbanja

19:The Dichotomy of Arbitration with the State in South Africa, Engela C Schlemmer

20:Private-Public Arbitration in Australia: Public Law Concerns, Private Law Responses, Caroline Henckels

Annex: Country Questionnaire