Understanding (and Misunderstanding) “Primary Jurisdiction”

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.

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