Private-Public Interaction in Global Governance: The Case of Transnational Commercial Arbitration

Abstract

Scholars of international relations and global governance are increasingly interested in the transnational commercial arbitration system. So far, they have tended to characterize the system as a form of private global governance. However, using a combination of empirical and legal analysis, this article draws attention to the critical role of the state in the transnational commercial arbitration system, and shows that both rule-making and enforcement in the system depend largely on interactions between private and public actors. By treating arbitration as a form of private governance, scholars run the risk of obscuring these interactions and hindering their understanding of how transnational economic activity is governed. This article therefore argues for a modest reorientation of global governance scholarship on transnational commercial arbitration in a direction that focuses more closely on private-public interaction. More broadly, this article suggests that understanding interactions between private and public actors is a key to understanding global governance in general, and it raises doubts about the analytical desirability of a sharp distinction between private and public forms of global governance.

Keywords: Global Governance, Private Governance, Private Ordering, Private Regulation, Arbitration, Transnational Arbitration, Transnational Commercial Arbitration, International Arbitration, International Commercial Arbitration, Dispute Resolution, International Law, Courts, International Law, Transnational