The Comparative Constitutional Foundations of Private-Public Arbitration
The Comparative Constitutional Foundations of Private-Public Arbitration
Professor of International and Economic Law and Governance
Cite
Abstract
The book engages with the rising phenomenon of arbitrations between private and public actors and the concerns this raises for principles of constitutional law (specifically principles of democracy, the rule of law, and the protection of fundamental rights). It features twenty chapters dealing with almost forty jurisdictions from different corners of the world and examines how domestic legal systems and legal practice approach the involvement of public entities as parties to arbitration agreements and arbitration proceedings. It analyses 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 does not undermine, 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.
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Front Matter
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Introduction
Stephan W Schill (ed.) -
Part I Private-Public Arbitration in Europe
Stephan W Schill (ed.)-
2
Private-Public Arbitration in English Law: The Splendid Isolation of Arbitration from Public Law
Stavros Brekoulakis andMargaret Devaney
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3
The Private-Public Divide and Its Influence over French Arbitration Law: Tradition and Transition
Florian Grisel
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4
Eroding the Rule of Law through Private-Public Arbitration? Constitutionalization of Private-Public Arbitration in the German Legal System
Stephan W Schill andNadine Berger
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5
Private-Public Arbitration in Spain: Legislative Timidity in the Shadow of the Constitution
Victor Ferreres Comella andPol Fontboté Pradilla
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6
Private-Public Arbitration under Greek Law: A (Nearly Complete) Public Law Paradigm
Nikolaos Askotiris
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7
Can a State Swim against the Tide? Hungarian Perspectives on Public-Private Arbitration
Csongor István Nagy
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8
Protection of the Public Interest in Private-Public Arbitration in the Baltic States
Eglė Zemlytė and others
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2
Private-Public Arbitration in English Law: The Splendid Isolation of Arbitration from Public Law
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Part II Private-Public Arbitration in the Americas
Stephan W Schill (ed.)-
9
Whither Leviathan? The Seepage of Constitutional Law into Public-Private Arbitration in the United States
Peter B Rutledge
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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 andAndrea Orta González Sicilia
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11
Reconciling Arbitral and Constitutional Governance: The Critical Role of the (Caribbean) Courts
Conway Blake
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12
The Legitimacy of Private-Public Arbitration in Argentina and Its Slight, but Yet Strong Differences with Private-Private Arbitration
Diego P Fernández Arroyo and others
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9
Whither Leviathan? The Seepage of Constitutional Law into Public-Private Arbitration in the United States
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Part III Private-Public Arbitration in Asia, Africa, and Australia
Stephan W Schill (ed.)-
13
Public-Private Arbitration in the Iranian Legal System: The Intersection of Preferential Rights and Constitutional Constraints on Arbitration
Jamal Seifi andKamal Javadi
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14
The Attorney General as Guardian of the Public Interest and the Evolution of Private-Public Arbitration in Israel
Tamar Meshel
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15
Living on the Edge of Judicial Review: The Law and Practice of Private-Public Arbitration in Pakistan
Ahmad Ghouri
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16
China’s Bifurcated Attitudes towards Private-Public Arbitration
Manjiao Chi
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17
Public Policy Dimensions of Public-Private Arbitration: Recent Development and New Systemic Awareness in Korea
Jaemin Lee
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18
The Constitutional and Public Interest Foundations of Public-Private Arbitration in Ghana
Dominic Npoanlari Dagbanja
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19
The Dichotomy of Arbitration with the State in South Africa
Engela C Schlemmer
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20
Private-Public Arbitration in Australia: Public Law Concerns, Private Law Responses
Caroline Henckels
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13
Public-Private Arbitration in the Iranian Legal System: The Intersection of Preferential Rights and Constitutional Constraints on Arbitration
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End Matter
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