Partie ou chapitre de livre
International Arbitration: A critical private international law perspective
The Oxford Handbook of International Arbitration
Oxford : Oxford University Press
Arbitration, International procedural law, Global governance, Loss of state control
This chapter discusses international arbitration as a crucial part of the legal framework that has progressively enabled the contemporary neo-liberal orientation of global governance. As such, it presents the perspective of critical private international law. If the latter discipline constitutes a significant viewpoint in this respect, it is precisely because it provided the foundational legal tools and discourse by means of which international arbitration attained such astounding success as a cornerstone of cross-border trade and investment regimes. The specific contention here is that in sanctifying freedom of contract to an unprecedented degree, including unrestricted party choice of law and forum, it has deactivated the regulatory constraints to which private actors are subject in a domestic setting and, involuntarily thereby, sealed the ‘loss of control’ by nation-states of various crucial aspects of the global economy. The chapter then explores the grievances generally addressed to arbitration as emblematic of the privatization of global governance, understood alternatively as a confiscation of power in the hands of a happy few individuals or as the subordination of public concerns to private interests.