Arbitration and the diversity of constitutional cultures

Abstract

There is a liberal case in favor of arbitration. A legal order that respects private autonomy should grant private parties the right to arbitrate their disagreements. There are good arguments, moreover, to support the constitutionalization of such a right. Whether the right to arbitration should ultimately figure in the constitution, however, depends on certain assumptions concerning the scope of the constitutional domain and the conditions under which rights may be restricted. If the sphere of constitutional rights is broad, if rights extend their force to private relationships, and if the principle of proportionality plays a central role in adjudication, the constitutionalization of arbitration is easier to achieve than if those conditions do not obtain. Anchoring arbitration in the constitution is thus more feasible in some countries than it is in others. It has been possible in Europe and Latin America, for example, but not in the United States.