International Arbitration's Public Realm

Abstract

Domestic arbitration is under attack as permitting repeat players to evade mandatory statutory law, as retarding legal developments, as undermining democratic lawmaking, and ultimately as imposing substantively biased outcomes on less sophisticated parties through contracts of adhesion. Collectively, these critiques of domestic arbitration could be interpreted as suggesting that domestic arbitration seeks to obviate or even subvert public interests and the public realm. The thesis of this chapter is that, in contrast to criticisms of domestic arbitration, international arbitration has a vibrant public realm. International arbitration produces public goods and has the potential to go beyond simply resolving disputes. It can promote international cooperation, improve transnational governance and contribute to the development of an international rule of law.