The (Comparative) Constitutional Law of Private‐Public Arbitration




Event Date: 

11/21/14 to 11/22/14

Location name: 

Heidelberg, Germany


Max Planck Institute for Comparative Public Law and International Law

Arbitrations between private economic actors and public law bodies are on the rise, both under
international investment treaties and contracts between private and public actors, such as
concession agreements or public‐private‐partnerships. Arbitrators, instead of domestic courts,
now settle a wide variety of private‐public disputes, ranging from the simple non‐fulfillment of
contractual obligations to complex disputes about the limits of states’ regulatory powers. Yet,
in doing so, they not only settle disputes, but also review the legality of government acts and
incrementally develop the applicable law. Arbitrators thereby become important law‐makers
that generate the law governing public‐private relations rather independently of specific
domestic legal systems and their democratic processes. The body of law thus developed,
designated for present purposes as lex mercatoria publica, may then prospectively steer and
restrict government conduct.

Relegating the resolution of private‐public disputes to arbitration raises questions of
legitimacy and concerns for principles of constitutional law, such as democracy, the rule of law,
and the protection of fundamental rights, because governments are controlled, and the
concrete delineation of private rights and public interests is drawn, not by democratically
legitimized domestic courts, but by party‐appointed one‐off arbitral tribunals. Concerns of a
constitutional nature are all the more significant as arbitration proceedings in private‐public
disputes do not conform to safeguards that are usually in place in public law adjudication in
domestic courts, such as transparency of the proceedings, possibilities for third‐party
participation, limitations on damages as public law remedies, or the need for public law
expertise of adjudicators. Instead, arbitration generally follows private law rationales, such as
party autonomy and confidentiality of the proceedings. All of this may endanger how states
regulate in the public interest. It raises questions, such as: how are arbitrators in such
proceedings legitimized? What powers do they, or should they have? What is their proper role
when reviewing government acts? What is the appropriate normative framework governing
their activity? Is the consent of the disputing parties sufficient to legitimize private‐public
arbitrations, or are farther‐reaching public law strictures necessary?

The ERC‐funded Lex Mercatoria Publica Project under the direction of Dr. Stephan Schill
(for a brief description see www.lex‐mp‐de) aims at developing a solid framework for assessing
legitimacy concerns relating to private‐public arbitration. However, rather than discussing in
the abstract how constitutional ideals may impact private‐public arbitration, it aims at
developing criteria to assess the legitimacy of private‐public arbitrations through comparative
analysis of concrete constitutional regimes. It wants to explore the conditions under which
different domestic legal systems, as well as supranational regional regimes, permit privatepublic
arbitrations, and distil, if possible, common principles, or develop different models, from
such a comparative exercise. How does, for example, Columbian, Brazilian, Chinese, Indian,
French, Russian, South‐African, or US (constitutional) law and practice look at the involvement
of its and other government entities in arbitration? Does it treat it differently from commercial
arbitration between private parties? To which extent does it permit it? How does it regulate
private‐arbitration? What control mechanisms does it establish in order to ensure that the
public interest is safeguarded when public entities agree to have disputes resolved through
arbitration rather than in domestic courts? Similarly, what is the position, for example, of
ASEAN, the EU, the Council of Europe, the Inter‐American Convention on Human Rights,
OHADA, or COMESA on these issues?

Against this background, a workshop is convened at the Max Planck Institute for
Comparative Public Law and International Law in Heidelberg on November 21‐22, 2014, which
focuses on the constitutional law of private‐public arbitration in a comparative perspective. It
aims to receive contributions from participants that will address, in the form of national reports
or (regional) comparative analyses, how a specific jurisdiction (e.g., Spain, Egypt, or Russia), a
group of countries (e.g., West‐Africa, Central‐Asia, Central Europe), or a regional organization
(e.g., OHADA, ASEAN) approach and regulate private‐public arbitration and how they ensure
that the public interest is safeguarded when public entities agree to arbitrate disputes.
Contract‐based as well as investment treaty‐based, domestic and international arbitration
should be considered.

We hope to receive contributions reporting on jurisdictions that are representative of as
many of the world’s legal systems as possible and particularly encourage contributions from
jurisdictions that are usually under‐represented in comparative law research, including from
Latin‐America, Africa, and Asia. Possible contributors can be specialists in arbitration with
expertise in constitutional and administrative law or vice‐versa specialists in constitutional or
administrative law with knowledge of arbitration.

Submission of Proposals and Timeline

Original and non‐published submissions from both junior and senior academics and
practitioners are invited on the themes outlined above. An abstract of max. 800 words and the
applicant’s CV should be sent (in .pdf or .doc format) to lex‐ by 15 September
2014. Abstracts must include the legal order(s) considered, the approach taken by the author,
and the major arguments to be made.
A selection panel will consider all abstracts and notify applicants of acceptance by 30
September 2014. Applicants must be prepared to circulate a draft of their paper by 10
November 2014. Following the Workshop, papers must be prepared for publication in an
edited monograph with a leading international publisher. Costs for travel and accommodation
will be covered by the organizers.

If you are unable to attend the workshop, but are interested in contributing to the
edited volume, we are equally happy

From International Law Reporter