60 Pages Posted: 2 Nov 2020 Last revised: 10 May 2021
Date Written: September 11, 2020
In recent years, states from Delaware to Dubai have been establishing something in between courts and arbitration, what this Article calls “arbitral courts.” Arbitral courts mimic arbitration’s traditional features. They hire internationally well-regarded judges who may also work as arbitrators. They claim the neutrality, expertise, and sometimes the privacy and confidentiality of international arbitration. Unlike arbitration, however, they bind third parties, develop law, and wield the power of the state.
This Article identifies, theorizes, and explores the significance of these new arbitral courts. Arbitral courts unsettle traditional distinctions between public and private adjudication. Their appearance has significant consequences not only for understanding the state of the evolving international judicial system, of which U.S. courts have historically been an important part, but also for the future of legitimacy and transparency in dispute resolution around the world.
There is much to applaud about the innovation of arbitral courts. But questions remain about whether there is and should be a dividing line between public and private adjudication. This Article uses arbitral courts to investigate that line by distinguishing between courts’ and arbitral tribunals’ claims to legitimacy and their needs for transparency and publicity. It argues that arbitral courts have the potential to develop influential transnational law—if they can maintain the traditional openness of courts despite parties’ preferences for confidentiality. To do so, they should publicly declare their commitment to being a public institution and take other steps to ensure that they maintain transparency over time, even when other forces—like the parties’ preferences—pressure them to become more private.
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