Burning The Idols Of Non-Arbitrability: Arbitrating Administrative Law Disputes With Foreign Investors* – Vol. 12 No. 1

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AuthorShane Spelliscy**

Published: January 2002

Categories of Disputes

Description: Is there anything left that is sacred? That is, is there anything left which is considered to be beyond the legitimate purview of arbitration? Traditionally, there were areas where the interests of the general public were so intricately interwoven in a dispute that this essentially private form of dispute settlement was considered inappropriate. However, in the last fifteen years the belief in the non-arbitrability of these sorts of disputes has slowly faded away, particularly in the United States. Perhaps one of the last remaining bastions of non-arbitrability is administrative law and, in particular, the domain of the administrative dispute with the local official. This is, perhaps, due in part to the very nature of local administrative laws, such as zoning laws, in that they do not lend themselves to repudiation or negotiation, but rather set limits that the local official does not have the authority to compromise. In considering the arbitrability of these claims, the first question that must therefore be addressed is whether there is any room for the sort of “compromise” that is inherent in any arbitration proceeding. In this note, I will provide a justification for answering this question in the affirmative, especially in developing and transitioning states where legal systems are often fraught with the difficulties which arbitration can help avoid.

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*Notes & Comments
**J.D. Candidate, Columbia University School of Law 2002. This Note is a revised version of a paper submitted in the seminar on International Commercial Arbitration at Columbia Law School.