2 - Constitutionalizing the Right to Arbitration

Summary

The right to arbitration has a liberal foundation. Whether the Constitution should guarantee arbitration as a right, however, is a separate question, which is likely to be answered differently in diverse constitutional traditions. A comparative examination of the United States, Europe, and Latin America on the constitutional status of arbitration is instructive in this regard. Contrasting conceptions about the scope of the constitutional domain of rights, about the intensity of judicial review of legislation, and about the potential effect of constitutional rights in the private sphere, lead to disparate conclusions about the constitutional status of arbitration. There is nevertheless a general argument in favor of constitutionalization: arbitration can be better protected against unduly restrictive legislation, if arbitration is rooted in the Constitution. The government is forced to justify its restrictive norms in a judicial forum.