Author: James M. Gaitis*
Published: December 2006
Interim Measures of Protection
It would be idyllic to think that the venerable Federal Arbitration Act (“FAA”) has now matured, like a finely aged wine, to the point that it has become a divinely finished product, perfected for consumption and beyond further improvement. As is usually the case with such meanderings, however, reality requires a more sobering perspective. In the corporeal world of domestic and international arbitration, the FAA has proved awkward and sadly deficient and some scholars have thus argued vigorously for its revision. The drafters of new or revised arbitration statutes also have recognized that the FAA has in various ways become outmoded and problematical. New, or newly revised, domestic and international model arbitration statutes thus effectively avoid many, but not all, of the inconsistencies that are engraved into the FAA. As if to underscore the point, the various institutions that promulgate arbitration rules and procedures for use in commercial arbitrations also have incorporated processes and concepts that are designed to avoid or deflect certain adverse and undesirable consequences stemming from the federal law. And even experienced arbitrators, having perceived the frailties of the FAA and other arbitration laws, advocate the adoption of informal methods and practices that are intended to avoid the harsh, and often unintended, consequences of those statutes.
Regrettably, such efforts can only partially mitigate the adverse effects of the FAA’s shortcomings, which can be fully remedied only by legislative fiat. Under such circumstances, counsel and arbitrators alike must be wary of the severe, and often unintended, ramifications that attend the application of the FAA and must seek actively to avoid the many adverse consequences that can arise from its frailties.
*Director, International Dispute Resolution and Management Programme, and Principal Teaching and Research Fellow, Centre for Energy, Petroleum, and Mineral Law and Policy, University of Dundee, Scotland, UK. © 2005.