Public-Private Arbitration and the Public Interest Under English Law
Modern Law Review, Forthcoming
55 Pages Posted: 12 Nov 2016
Date Written: November 11, 2016
Together with the increase in the number of public-private contracts, recent years have seen a marked proliferation in public-private arbitrations. This article explores the public interest implications which may arise in such arbitrations and examines how public-private arbitration is treated under English law. We argue that, due to the lack of a developed administrative law sphere in England and the historical development of arbitration as an exclusively private mode of dispute resolution, the current legal framework of arbitration in England has developed around the private law paradigm of a commercial dispute involving private actors. This private law paradigm results in a conceptual and legal void in respect of how public interest is accounted for, and protected, in arbitrations involving public entities under English law. Therefore, we suggest that English arbitration law needs to reconceptualise public-private arbitration and embed it in a public law narrative.
Keywords: administrative law; arbitration; Arbitration Act 1996; public interest; public policy; public law; public-private law divide; public-private contracts
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