The constitution of arbitration

著者

書誌事項

The constitution of arbitration

Victor Ferreres Comella

（Comparative constitutional law and policy）

Cambridge University Press, 2021

  • : hardback

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注記

Includes index

Summary: "Arbitration is an important institution that allows parties to resolve disputes without going to court. The parties to a contract, for example, may stipulate that any future controversy will be resolved by arbitrators. This stipulation is common when private actors engage in international legal transactions. Many countries in the world, moreover, have entered into international agreements enabling foreign investors to initiate arbitral proceedings against the host state. Also in the international arena, states have traditionally brought their differences to arbitral tribunals for an effective settlement. In spite of the relevance of arbitration, most constitutional scholars have neglected it. They have tended to treat arbitration as a marginal institution in the grand scheme of things constitutional. Experts in arbitration, in turn, have failed to link their analyses to a broader constitutional discourse. The ambition of this book is to establish bridges between these two epistemic communities. ..."

収録内容

  • The liberal case for arbitration
  • Constitutionalizing the right to arbitration
  • Boundaries and constraints
  • Arbitration and the law-making process
  • The special case of international commercial arbitration
  • The rise of investment treaty arbitration
  • Privileging foreign investors? The equality challenge
  • Adjudicative coherence and democratic checks on arbitral jurisprudence
  • Investment treaty arbitration, regional integration, and fragmentation of international law
  • The arbitral foundations of international adjudication
  • The virtues and limitations of state-to-state arbitration

内容説明・目次

内容説明

This work is the first systematic discussion of arbitration from a constitutional perspective, covering the most important types of arbitration, including domestic arbitration in private law, international commercial arbitration, investment treaty arbitration, and state-to-state arbitration. Victor Ferreres Comella argues for the recognition of a constitutional right to arbitration in the private sphere and discusses the constraints that the state is entitled to place on this right. He also explores the conditions under which investment treaty arbitration is constitutionally legitimate, and highlights the shortcomings of international adjudication from a constitutional perspective. The rich landscape of arbitration is explained in clear language, avoiding unnecessary technical jargon. Using examples drawn from a wide variety of domains, Ferreres bridges the gap between constitutional and arbitral theory.

目次

  • Introduction: The Varieties of Arbitration
  • Part I. Arbitration and Private Law: 1. The Liberal Case for Arbitration
  • 2. Constitutionalizing the Right to Arbitration
  • 3. Boundaries and Constraints
  • 4. Arbitration and the Law-Making Process
  • 5. The Special Case of International Commercial Arbitration
  • Part II. Investment Treaty Arbitration: 6. The Rise of Investment Treaty Arbitration
  • 7. Privileging Foreign Investors? The Equality Challenge
  • 8. Adjudicative Coherence and Democratic Checks on Arbitral Jurisprudence
  • 9. Investment Treaty Arbitration, Regional Integration, and Fragmentation of International Law
  • 10. The Arbitral Foundations of International Adjudication
  • 11. The Virtues and Limitations of State-to-State Arbitration.

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