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.

Number of Pages in PDF File: 30

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

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