Copyright (c) 1997 Buffalo Law Review
Buffalo Law Review
ARTICLE: When Ignorance of the Law Is No Excuse: Judicial Review of Arbitration Awards
45 Buffalo L. Rev. 49
Kenneth R. Davis *
Ask for an appraisal of arbitration and you spark debate as vigorous as arguments about religion or politics. Supporters praise arbitration's streamlined procedures and costeffectiveness. 1 Charging the judicial system with "complete and absolute failure," 2 they hail arbitration as "a better way" to resolve disputes. 3 Critics lambast arbitration as "an inferior system of justice" 4 marred by "lawlessness." 5 They predict that the deficiencies of arbitration will cause it to "burn out and collapse." 6
However persuasive, such opinions both for and against arbitration may lead to confusion. The core of arbitration is not simplicity, though most who choose that forum seek escape from the convolutions of the courtroom. Nor is reduced expense the essence of arbitration, though few would quarrel with trimming counsel fees. The central element of arbitration is the intention of the parties as expressed in the arbitration agreement. The agreement determines the process. Informality may flow from the agreement, but it need not, for the parties may insist on adhering to arcane rules of evidence or on wearing powdered wigs during the hearing. Privacy may flow from the agreement, but it need not, for the parties may broadcast the proceedings on public access television.
Once it is understood that party intent is the defining feature of arbitration, previously intractable issues become surprisingly manageable. Two such issues have long perplexed the judiciary. The first is arbitrability, that is, whether an issue is even subject to arbitration. The second is ...
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