Arbitration Involving Governmental Entities

Abstract

Though arbitral process is now broadly engaged by governments under national law, there is generally lacking examination of the special considerations for the government lawyer that are distinctive to the public policy interests of government. The following article provides analysis of the advantages and disadvantages of adopting arbitration as the dispute resolution process for government and governmental entities, in controversies involving private and commercial interests, as well as disputes between governments and governmental entities. The article focuses on the relatively recent but fulsome adoption of arbitration for the government of Brazil, as providing the most significant recent testing ground for governmental arbitration, while drawing on the historic experience of international arbitration and arbitration in the United States, for relevant instruction in guiding the future engagement of government in arbitration.

Keywords: arbitration, dispute resolution, alternative dispute resolution, government arbitration, inter-state arbitration, investor-state arbitration, international arbitration, Brazil