Constitutional Environment and the Phenomenon of Arbitration
pages 147 - 160
ABSTRACT:

The idea of international arbitration tribunals that use several instruments of international law institutes a “non-governmental” approach to settling private-law disputes (in addition to the perceptibleness of settlement, which may be negotiated outside arbitration proceedings). From the constitutional viewpoint, such an approach relinquishes, to some extent, the right to resort to general courts of law, the principle of fair trial and, to some extent, the principle of appeal. All these factors correspond, more or less, to the organizational and procedural aspects of constitutional law. From the viewpoint of constitutional law, it is difficult to perceive the effects of this agreement as “a derogation of the jurisdiction of the Constitutional Court”. More precisely, the issue concerns the lawful use of the arbitration authority of public power with regard to a subject of private law with the possibility (albeit limited) to have the matter “returned” for review by a general court of law.

keywords
Adversarial nature of arbitration
general principles of due process
objective arbitrability
nature of justice
concept of “due process”
arbitration
jurisdictional theory
constitutional nature of arbitration
constitutional environment
constitutional values
constitutional law
public policy
model law
fundamental human rights
about the authors

Prof. et Doc. JUDr. Karel Klíma, CSc., dr. hab. is a university professor specializing in constitutional law. He is the head of the Legal Specialisations and Public Administration at the Metropolitan University in Prague.

Long time member of the Council of the International Association of Constitutional Law (IACL), member of the Academy of Comparative Law, member of the World Jurist Association and its President of the Section of the Law Professors.

Email: advokatikhklima@gmail.com

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