Understanding (and Misunderstanding) “Primary Jurisdiction”
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Date
2010-07-01
Authors
Rau, Alan S.
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Any private mechanism of dispute resolution depends in the last resort on public sanctions and the public monopoly of force. It is this sense that one can speak of a hierarchical relationship between courts and arbitral tribunals. Simultaneously, in a world of comparative advantage, of global ventures, and connected markets, transactions and disputes will routinely flow over national boundaries; they will most likely involve parties of different nationalities and will implicate different sovereign interests. Here, conflict and competition between national jurisdictions become inevitable. One may find the idea of a vision of a mechanism for mercantile self-government that is entirely self-contained—one independent of local peculiarities and with a claim to universal recognition. Such an ideal lacks any organized, permanent hierarchical structure, any supranational standing bureaucracy, that could make it a concrete reality.