Rogers: The Arrival of the Have-Nots in International Arbitration

Catherine A. Rogers (Bocconi Univ. - Institute of Comparative Law & Louisiana State Univ. - Law) has posted The Arrival of the Have-Nots in International Arbitration. Here's the abstract:

Much has been written about the have-nots in domestic litigation and domestic arbitration, with an apparent assumption that their fate was mainly a domestic affair. In recent years, however, internet commerce has brought consumers to the international market, an increasingly globalized workforce has generated a class of international employees, and the link between international trade and human rights has revealed a host of victims. The arrival of these "have-nots" in international arbitration means that previously latent questions about international arbitration's integrity as a system and role as a mechanism for transnational regulatory governance have been brought to the fore.

Using experiences in the domestic and the investment arbitration contexts as a backdrop for comparison, I examine the treatment of have-nots in international arbitration. In domestic and investment arbitration, claims by have-nots have revealed and exacerbated structural weaknesses in those systems, as well as unanticipated shifts from sovereign governments to private arbitrators. In contrast to these experiences, before these new parties are fully integrated, the international arbitration system has an opportunity to engage in deliberative construction in order to ensure that the system is prepared to facilitate fair adjudication of their claims and to provide an effective mechanism for transnational regulation.

The structural features of the system and the professional ethos of international arbitration's caretakers endow it with the capacity to serve as a venue for mediating between conflicting national public policies and facilitating international governance with respect to those regulatory interests that are designed to protect the interests of the have-nots. To fully realize these goals, and more importantly to avoid the pitfalls that domestic and investment arbitration encountered with claims by have-nots, I conclude that the international arbitration community must necessarily undertake active efforts to accommodate these new types of claims by, among other things, training arbitrators and developing specialized procedures specifically adopted to these new types of claims.