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International Arbitration’s Public Realm

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Chapter Summary

To the casual observer, international arbitration and domestic arbitration might seem to be Siamese twins, identical, co-joined at birth, and laboriously separated later. The thesis of this chapter is that, in contrast to criticisms of domestic arbitration, international arbitration has a vibrant public realm. International arbitration has the potential to produce public goods and to go beyond simply promoting resolution of disputes, but also international cooperation, transnational governance, and development of the international rule of law. To date, the modest efforts to explore the public side of arbitration have concentrated on the domestic U.S. context and have focused almost exclusively on the question of whether arbitration implicates state action such that it is subject to U.S. constitutional procedural protections. There are, however, numerous other ways in which so-called private international arbitration manifests public facets. The chapter finally documents the public side of so-called private international arbitration.

Keywords: domestic arbitration; international arbitration; international rule of law; public facets; U.S. constitutional procedural protections



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