International Arbitration as Private or Public Good

Abstract

This chapter goes at the private and public nature of international arbitration in a manner different from the usual one. It asks not whether arbitration is private or public law, which remains a problematic categorical distinction, but instead whether it is a private or public good. The distinction between private goods and public goods, developed in economics, promises new insights for an assessment of arbitration, too. The chapter first introduces that economic distinction between private and public goods. It then demonstrates the ways in which adjudication by courts combines elements of private and public goods, before finding a parallel combination of private and public good aspects in international arbitration. The discussion will concern mainly commercial arbitration, though investment arbitration will also be considered to some extent as well. The chapter ends by laying out some implications.