The constitutionality of default arbitration
A proposed Bilateral Arbitration Treaty would subject international commercial disputes between enterprises in signatory states’ jurisdictions to arbitration unless the parties agreed to the contrary. This marks a substantial departure from conventional understandings of arbitration as based on the consent of the parties. More importantly, the policy would modify the jurisdiction of the courts, removing a large number of disputes to offshore tribunals subject to minimal judicial oversight. This paper explores the constitutional propriety of such a policy, with particular attention paid to the principles of the separation of powers, the rule of law, public provision of essential State functions, open justice, and democracy. These constitutional principles would be subverted if the policy were to operate within the existing regulatory framework for arbitration. The paper makes recommendations for possible modifications to the policy that would make it a better fit with the constitution.