Arbitration and beyond
As a form of private justice supported by the power of the state, arbitration is subject to the control of a court of law. Of its own motion, the court ensures that the matter is arbitrable and that public policy has been respected. At the request of a party, the court is also responsible for ensuring compliance with the agreement between the parties, including issues related to the competence of the arbitrator.
Arbitrability, public policy, arbitration agreements and competence lie at the heart of the dynamic between private justice and public justice, as they determine for the latter what remains an area reserved to the state, free from competition. This area has become the focus of attention because of the increasing recognition of the right of the parties to determine their own law, which can entail the application of rules taken outside the parameters set by recognized legal systems. For example, these rules can refer the arbitrator to religious law or to rules of transnational commercial law.
A McGill research team is currently asking the hard questions about the relation between private justice and the rule of law.