The privatization and contractualization of arbitration, while they empower parties and unburden public institutions, should not eliminate completely the basis for the public regulation of the process. The string of "one-off' arbitrations, gathered together, has consequences upon the public interest in the orderly administration of adjudicative relations in both domestic and international law. The use of arbitration does have a bearing upon the substantive content of legal rights. Judicial vigilance should not only ward off the flagrant abuses of process and procedure in arbitration, but it should also establish an "interests of justice" limitation upon the operation of the process and the rulings of arbitrators. The likelihood of exercising this judicial power should be as clear and unequivocal as it is restrained. It should, however, always remain meaningful. The public interest in adjudicatory order and fairness must receive an authoritative expression, not a perfunctory and empty nod.
Thomas E. Carbonneau,
The Exercise of Contract Freedom in the Making of Arbitration Agreements,
36 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol36/iss4/4