ARTICLE: DETERRENCE AND IMPLIED LIMITS ON ARBITRAL POWER Skip over navigation
LexisNexis® Browse Law Reviews and Treatises
Skip over navigation
Sign in with your lexis.com® ID to access the full text of this article.
-OR-
Order the full text of this article if you do not have a lexis.com® ID.
 
Price: 
US $22.00 (+ tax)
 
 

Copyright (c) 2005 Duke Law Journal
Duke Law Journal

ARTICLE: DETERRENCE AND IMPLIED LIMITS ON ARBITRAL POWER

December, 2005

55 Duke L.J. 547

Author

Michael A. Scodro+

Excerpt



Introduction
 
Commercial arbitration has undergone a remarkable transformation.
 
1 Up until just twenty years ago, U.S. courts generally refused to enforce "predispute" arbitration clauses - contract provisions requiring parties to resolve any future disputes in arbitration rather than in court - when doing so meant ordering parties to arbitrate antitrust, securities fraud, or other examples of what are sometimes termed "public law" claims. Courts enforced such predispute clauses when disputes arose over the meaning of contract terms. Judges feared that arbitrators might not fully vindicate public law rights, however, and courts therefore refused on policy grounds to order binding arbitration when such rights were at stake. 2 This was the state of the law throughout much of the twentieth century, notwithstanding the 1925 enactment of the Federal Arbitration Act (FAA or the Act), 3 legislation that on its face requires courts to enforce predispute arbitration clauses as they would enforce any other contract, without regard to the substance of the parties' underlying disputes. 4

Judicial concern for the fate of public law claims in arbitration was not unfounded. In addition to various procedural differences between judicial and arbitral proceedings, it was often said that commercial arbitrators were not bound to apply substantive law. At the same time, the FAA enumerates only very narrow grounds for disturbing arbitral awards - gross procedural defects such as arbitrator corruption, fraud, or unauthorized conduct. 5 Therefore, substantive review for decades has been chiefly the province of a purported judge-made addition ...
 
 
If you are interested in obtaining a lexis.com® ID and Password, please contact us at 1-(800)-227-4908 or visit us at http://www.lexisnexis.com/.
Search Documents
 
eg., Environmental Insurance Coverage Under the Comprehensive General Liability Policy
 
 
 
 

Lexis® Web - The only search engine that delivers free web content specifically from legal sites validated by LexisNexis® attorney editors and includes tools for faster research and more relevant results.

 
LexisNexis Store
Research Now - Go to lexis.com
Connect the Dots - Free 1 hour webcast
Share. Network. Discover. - Go to LexisNexis Communities