Author: Hans Smit**
Published: December 2008
Contractual Expansion or Limitation of Judicial Review
The Supreme Court has now resolved the split in the lower courts on whether parties can contractually expand the grounds on which arbitral awards may be judicially reviewed. Both the courts and the commentators had expressed conflicting views. Professor Rau had published a very detailed analysis on the subject in this Review concluding that contractual expansion was permitted. I, in a much briefer commentary, also in this Review, had concluded that it was not. The Supreme Court, in an opinion by Justice Souter, reached the same conclusion that I had reached, but I nevertheless regard his opinion as less than adequate.
In the first place, Justice Souter made no reference at all to either Professor Rau’s detailed analysis nor to my, much shorter, one, even through they appeared to set forth the appropriate analyses and arguments. More significantly, neither the lawyers who prevailed, nor the amicus brief of the American Arbitration Association, both of whom defended the view I had espoused, cited my article, although the losing side did refer to Professor Rau’s contribution. Of course, we all write in the hope that the views we express will, in due course, be given appropriate consideration by public authorities, be they the legislature or the courts, as well as commentators. But it is not encouraging when, as in this case, the Court reaches the ultimate correct decision without even acknowledging what the commentators had written. And that is especially true, when, as in the case at hand, the Court’s analysis, although ultimately leading to the correct conclusion, reflects a misunderstanding of basic concepts and summarily addresses, and cases doubt upon, the doctrine of manifest disregard of the law, a doctrine that is subject to significantly divergent views in the courts and the writings of commentators, again without referring to these authorities.
*Special Section: Hall Street Associates, L.L.C. v. Mattel, Inc.
**Stanley H. Fuld Professor of Law, Columbia University. The author expresses his appreciation to Neel Maitra, J.D. Candidate, Columbia Law School 2010.