Arbitration Under Government Contracts and Government Accountability

13 Pages Posted: 8 Jul 2021

See all articles by Caroline Henckels

Caroline Henckels

Monash University - Faculty of Law

Date Written: June 24, 2021

Abstract

Much of the core work of government is now done pursuant to contract with private sector bodies, primarily for efficiency reasons. While the phenomenon of contracting out of governmental functions has attracted increasing scholarly attention in terms of public law accountability, the use of commercial arbitration for the resolution of contractual disputes involving governments has until recently attracted scant attention. The law regulating commercial arbitration does not distinguish between arbitrations between private actors and arbitrations involving governments, treating all commercial disputes as wholly private in nature. By controlling government action, arbitrators contribute to governance but without the hallmarks of the judicial process such as impartiality, transparency, the possibility for third- party participation, and judicial oversight. As such, the law does not take into account the public dimension of disputes under government contracts or the role of arbitrators as adjudicators of public law disputes. Nor do there appear to be any constitutional constraints on the use of arbitration in government contracts.

Keywords: Arbitration, government contracts, impartiality, transparency, courts, constitutional law

JEL Classification: K10, K20, K30, K40

Suggested Citation

Henckels, Caroline, Arbitration Under Government Contracts and Government Accountability (June 24, 2021). Federal Law Review (Forthcoming), Monash University Faculty of Law Legal Studies Research Paper No. 3873544, Available at SSRN: https://ssrn.com/abstract=3873544

Caroline Henckels (Contact Author)

Monash University - Faculty of Law ( email )

15 Ancora Imparo Way
Clayton, Victoria 3800
Australia

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