Arbitration Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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Arbitration is a long-standing form of adjudication that seeks to provide more economical, less formal, quicker, and more expert trial proceedings. The process was recognized in the ancient world, mentioned in the Quran, and served as a model for rabbinical courts. George Washington referred to it in his will. Although it is meant to be an alternative to judicial litigation, arbitration more closely resembles court proceedings than structured negotiation mechanisms, like mediation. Under contemporary perceptions, arbitration is more than an ancillary form of adjudication. In Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974), the U.S. Supreme Court deemed arbitration vital to international commerce; in Rodriguez v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989), it proclaimed arbitration instrumental to fulfilling the promise of constitutional due process.

The improper operation of judicial processes has made arbitration necessary. As former Chief Justice Warren Burger stated, judicial litigation takes too long, costs too much, and can decimate human relationships. Ordinary legal rights fall by the wayside. Faced with dwindling social resources and political deadlock, the Supreme Court chose to advocate for privatized justice and the submission of civil disputes to arbitration.

Arbitration in the United States is governed by the Federal Arbitration Act (FAA). Enacted in 1925, the FAA contains provisions establishing the validity of arbitration agreements and enforceability of arbitral awards. The legislation embodies a “hospitable” federal policy on arbitration. The case law has added substantially to its content over the years. More than forty U.S. Supreme Court opinions establish that the federal law of arbitration preempts conflicting state laws (making the FAA the exclusive national law of arbitration); the act applies to the vast majority of employment arbitration agreements despite the exclusion in FAA § 1, and arbitral proceedings are the equal of judicial trials for litigating claims. Moreover, arbitrations are isolated events with no general impact. The court also has determined that statutory claims can be submitted to arbitration, thereby substantially increasing the jurisdictional range of arbitration. In Penn Plaza v. Pyett, 129 S. Ct. 1456 (2009), for example, the Supreme Court ruled that arbitrators could decide civil rights claims.

In a word, arbitration thrives in U.S. law. It is greatly favored by courts and legal doctrine. The case law makes it exceedingly difficult to void arbitration agreements or nullify arbitral awards. California and neighboring states dissent from the general consensus by invalidating arbitration in adhesionary circumstances. The federal preemption doctrine, however, keeps the dissension in check by giving the federal support of arbitration its full doctrinal impact.

Arbitration is structurally resilient and adaptive. It seeks solutions and avoids impasse. Its ethic is pragmatic. Proposed congressional legislation, buttressed by some lobbying groups and a small minority of academic commentators, threatens the current practice by prohibiting arbitration in unilateral contracts. The wholesale invalidation of predispute arbitration agreements in adhesionary sectors could compromise the basic legitimacy of arbitration by creating the erroneous impression that arbitration is an abusive process that caters solely to the richest and most powerful parties. The U.S. Supreme Court’s depiction is more accurate: Arbitration supplies meaningful access to an effective means of redressing grievances through third-party decision making.

Arbitration also has wide currency in global commerce. It recently expanded its reach to the mixed political-commercial issues of investment between developed and developing countries. European democracies, like France and England, have embraced arbitration particularly in matters of trans border commerce, giving it—for the time being—somewhat less play in the internal administration of justice. Arbitral adjudication has taken hold in Latin America and China. Despite some resistance and a few flaws, it is the most universal and effective extant adjudicatory process.

Bibliography:

Born, Gary B. International Commercial Arbitration, 2 vols. Boston: Kluwer Law International, 2009.
Burger,Warren. “Our Vicious Legal Spiral.” Judges Journal 16, (Fall 1977): 23. Carbonneau,Thomas E. The Law and Practice of Arbitration, 3rd ed. Huntington, N.Y.: Juris, 2009.
Edmonson, Larry E. Domke on Commercial Arbitration, 3rd ed., 2 vols. St. Paul, Minn.:West, 2009.
MacNeil, Ian R. American Arbitration Law. Oxford: Oxford University Press, 1992.
Searle Civil Justice Institute. “Consumer Arbitration before the American Arbitration Association” (Preliminary Report). Chicago: Searle Center on Law, Regulation, and Economic Growth, Northwestern University School of Law, March 2009.