There is a moment in The Merchant of Venice that sticks: Portia, in disguise, takes the floor, and with nothing more than a few inches of parchment and an arsenal of words, unseats Shylock’s claim to his pound of flesh. She has no badge, no robes, no divine mandate, but the court listens nonetheless. One could argue that Portia wins not by law, but by the force of her authority stitched together from reason, rhetoric, and something harder to pin down: moral suasion. It’s a scene that should give anyone working in arbitration a slight, uncomfortable itch. Strip away the costume drama and you’re left with the same awkward question: what gives an arbitrator the right to decide? In court, judges can fall back on the full, smug weight of the state. Arbitrators, on the other hand, operate on a thinner diet. Their legitimacy rests on consent. Consent is lovely, until one realises how easily it can be faked, coerced, or wrung out under duress. We love to talk about freedom of contract, but we know it’s often as free as a trapped animal choosing between the snare and the gun.
This wasn’t a big problem once. Arbitration was a dusty corner of the legal attic where commercial disputes went to die quietly. Today it’s a glossy global industry that doesn’t just touch on money, but on public interest, human rights, sovereignty. Arbitration has grown up, but it’s done so faster than its theoretical backbone. Is party autonomy still sufficient to prop up the whole structure? Or is something more required?
There are those who think arbitration should stay simply a service for hire. Others see it as a legal order in its own right, weaving together rules and customs across jurisdictions, a kind of quiet rebellion against state monopoly on justice. Somewhere between these two fantasies lies an uncomfortable truth: arbitration, like Portia, has no automatic right to command. Its authority must be earned, case by case, argument by argument, through reasoning that does not just satisfy the letter of the contract but speaks to broader notions of fairness and public reason. This is not an easy sell, but the alternative - that arbitration becomes a hollow ritual, or worse, a marketplace for favourable outcomes - is more unpalatable. If arbitration is to survive the scrutiny it now attracts, it must learn Portia’s trick and convince rather than command. The price of its authority is not just a signature on a dotted line, but a commitment to integrity. After all, a pound of flesh taken without mercy may satisfy the contract, but it starves the soul of justice (ok, I may have overdone it with this last sentence, but you know what I mean).