Comparing Constitutional Challenges to the Validity of Arbitration Acts. / Valladares Pacheco de Oliveira, Leonardo.

In: International Arbitration Law Review, Vol. 23, No. 2, 2020, p. 91-113.

Research output: Contribution to journalArticle

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Comparing Constitutional Challenges to the Validity of Arbitration Acts. / Valladares Pacheco de Oliveira, Leonardo.

In: International Arbitration Law Review, Vol. 23, No. 2, 2020, p. 91-113.

Research output: Contribution to journalArticle

Harvard

Valladares Pacheco de Oliveira, L 2020, 'Comparing Constitutional Challenges to the Validity of Arbitration Acts', International Arbitration Law Review, vol. 23, no. 2, pp. 91-113.

APA

Vancouver

Author

Valladares Pacheco de Oliveira, Leonardo. / Comparing Constitutional Challenges to the Validity of Arbitration Acts. In: International Arbitration Law Review. 2020 ; Vol. 23, No. 2. pp. 91-113.

BibTeX

@article{a80f4b59272644e9888064c66f2e9bb5,
title = "Comparing Constitutional Challenges to the Validity of Arbitration Acts",
abstract = "This article examines the correlation between arbitration and constitutional law by comparing decisions from nine jurisdictions where there has been a challenge to the constitutionality of the arbitration act or an act imposing the use of arbitration. Such challenges are made in different ways. Sometimes they are direct, that is, a direct challenge to the core of the act; and sometimes they are incidental – a challenge to a constitutional guarantee connected to the arbitral process. The aim of the study is to assess if such challenges are a real violation of a constitutional right, or if this is just a tactic made by parties wishing to delay or avoid arbitration that they have previously agreed to. The study compares the rationale behind the challenges and assess the common grounds in which they were raised. Through the comparison, the study concludes that for compulsory arbitration there is a valid argument in the challenges. Nevertheless, for voluntary arbitration, although the challenges are not completely trivial, they do not represent a risk to the practice of arbitration; in effect, they appear to be more like a technique used to procrastinate the enforcement of an arbitral award.",
keywords = "Arbitration, Constitutionality of arbitration acts, Access to court",
author = "{Valladares Pacheco de Oliveira}, Leonardo",
year = "2020",
language = "English",
volume = "23",
pages = "91--113",
journal = "International Arbitration Law Review",
number = "2",

}

RIS

TY - JOUR

T1 - Comparing Constitutional Challenges to the Validity of Arbitration Acts

AU - Valladares Pacheco de Oliveira, Leonardo

PY - 2020

Y1 - 2020

N2 - This article examines the correlation between arbitration and constitutional law by comparing decisions from nine jurisdictions where there has been a challenge to the constitutionality of the arbitration act or an act imposing the use of arbitration. Such challenges are made in different ways. Sometimes they are direct, that is, a direct challenge to the core of the act; and sometimes they are incidental – a challenge to a constitutional guarantee connected to the arbitral process. The aim of the study is to assess if such challenges are a real violation of a constitutional right, or if this is just a tactic made by parties wishing to delay or avoid arbitration that they have previously agreed to. The study compares the rationale behind the challenges and assess the common grounds in which they were raised. Through the comparison, the study concludes that for compulsory arbitration there is a valid argument in the challenges. Nevertheless, for voluntary arbitration, although the challenges are not completely trivial, they do not represent a risk to the practice of arbitration; in effect, they appear to be more like a technique used to procrastinate the enforcement of an arbitral award.

AB - This article examines the correlation between arbitration and constitutional law by comparing decisions from nine jurisdictions where there has been a challenge to the constitutionality of the arbitration act or an act imposing the use of arbitration. Such challenges are made in different ways. Sometimes they are direct, that is, a direct challenge to the core of the act; and sometimes they are incidental – a challenge to a constitutional guarantee connected to the arbitral process. The aim of the study is to assess if such challenges are a real violation of a constitutional right, or if this is just a tactic made by parties wishing to delay or avoid arbitration that they have previously agreed to. The study compares the rationale behind the challenges and assess the common grounds in which they were raised. Through the comparison, the study concludes that for compulsory arbitration there is a valid argument in the challenges. Nevertheless, for voluntary arbitration, although the challenges are not completely trivial, they do not represent a risk to the practice of arbitration; in effect, they appear to be more like a technique used to procrastinate the enforcement of an arbitral award.

KW - Arbitration

KW - Constitutionality of arbitration acts

KW - Access to court

M3 - Article

VL - 23

SP - 91

EP - 113

JO - International Arbitration Law Review

JF - International Arbitration Law Review

IS - 2

ER -