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Abstract

Contemporary academic research and scholarship are highly specialized. Legal scholarship on arbitration reflects this trend. There is extensive literature on domestic arbitration jurisprudence, on international commercial arbitration practice, and on investor-state arbitration procedure, and there are debates about the appropriate use of arbitration within all of these domains. But few of the participants in these debates are attentive to developments outside their own domains, and there are few examples of scholarship surveying trends across the three domains. Undertaking that analysis reveals important similarities in the challenges facing arbitration in each domain and in the responses to these challenges. Looking across all three domains—domestic arbitration within the United States, international commercial arbitration, and investor-state arbitration—we observe an expanding application of arbitration beyond purely private disputes to disputes with significant public policy dimensions. In response, there is increasing pressure in all three domains to incorporate in arbitration measures traditionally associated with public courts, including due process protections, public appointment of adjudicators, and process and outcome transparency. The result is a new form of dispute resolution, neither wholly private nor fully public, and satisfying neither those who promote the virtues of private dispute resolution nor those who insist that public courts are the proper locus for disputes with important public policy implications. We argue that re-inventing arbitration to adhere to public justice norms risks undermining its value for private actors with private disputes, while at the same time undermining courts as institutions for public contest over public policy issues. Rather than adding the trappings of public adjudication to arbitration, we should re-think the scope of arbitration in domestic and international spheres.

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