Finally, Chapter 4 analyzes the issue of fundamental rights sustainability under the new economic governance of the Eurozone. It investigates the role played by, and the status granted to, EU fundamental rights under this governance system. Its core finding is that of a fundamental discrepancy between the evolution of post-crisis economic governance towards a more constraining and supra-nationally driven system of harmonization and the institutional position of fundamental rights. Under the current configuration, that system’s ability to impact levels of rights protection in a systemic manner is not matched with equivalent safeguards. In spite of its clear applicability and multiple references in the relevant legislation, the body of EU fundamental rights only plays a peripheral role in the various policy-making processes making up standard economic governance. If recent initiatives (such as the Pillar of Social Rights or NGEU) do signal greater awareness to the human and social costs of Eurozone governance, rights mainstreaming remains close to non-existent, and the Charter does not guide or constrain policy deliberation in any meaningful way. Moreover, there is no sign that external reviewers (either the Court of Justice or the Fundamental Rights Agency) are ready to redress these deficiencies.

The right to arbitration has a liberal foundation. Whether the Constitution should guarantee arbitration as a right, however, is a separate question, which is likely to be answered differently in diverse constitutional traditions. A comparative examination of the United States, Europe, and Latin America on the constitutional status of arbitration is instructive in this regard. Contrasting conceptions about the scope of the constitutional domain of rights, about the intensity of judicial review of legislation, and about the potential effect of constitutional rights in the private sphere, lead to disparate conclusions about the constitutional status of arbitration. There is nevertheless a general argument in favor of constitutionalization: arbitration can be better protected against unduly restrictive legislation, if arbitration is rooted in the Constitution. The government is forced to justify its restrictive norms in a judicial forum.