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Davis, Kevin E. --- "Privatizing the Adjudication of International Commercial Disputes: The Relevance of Organizational Form" [2012] ELECD 495; in Cafaggi, Fabrizio (ed), "Enforcement of Transnational Regulation" (Edward Elgar Publishing, 2012)

Book Title: Enforcement of Transnational Regulation

Editor(s): Cafaggi, Fabrizio

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781003725

Section: Chapter 7

Section Title: Privatizing the Adjudication of International Commercial Disputes: The Relevance of Organizational Form

Author(s): Davis, Kevin E.

Number of pages: 26

Extract:

7. Privatizing the adjudication of
international commercial disputes:
the relevance of organizational form
Kevin E. Davis1


1. INTRODUCTION
Should profit-maximizing private firms be responsible for governing com-
mercial transactions? In recent years several commentators have argued
that profit-oriented private actors (`for-profits') ought to play a greater role
in governing commercial transactions (Hadfield 2001, 2009).2 This presents
a profound challenge to the conventional idea that law is a quintessentially
public good that ought to be provided by public actors, and adds an
important dimension to debates over who should govern the commercial
transactions that sustain our economic life.
Advocates of privatization emphasize the superior ­ relative to public
actors ­ incentives and resources of for-profits operating in competitive
markets. This chapter tests that claim by examining a setting in which the
advantages of for-profits should be most pronounced, namely, the market
for adjudication of international commercial disputes. Remarkably, for-
profits do not dominate. The actors who adjudicate international commer-
cial disputes include for-profits, not-for-profits, international organizations,
publicly-sponsored courts, and hybrid organizations. The organizational
diversity is striking.


1
I am grateful to Gary Bell, Franco Ferrari, Clayton Gillette and participants
in the Workshop on Enforcement of Private Transnational Regulation for helpful
comments and conversations, as well as to Maxwell Kardon for research assistance.
All errors are my own. Financial support from the Filomen D'Agostino and Max E.
Greenberg Research Fund at NYU School of Law is gratefully acknowledged.
2
For earlier treatments of ...