Author: James M. Gaitis*
Published: July 2011
I. INTRODUCTION—THE VENERABLE CASE OF “FOG EVERYWHERE” VS. “ON A CLEAR DAY YOU CAN SEE FOREVER”
One in search of a validating contemporary illustration of the legal system as a fog-ridden environment of confusion and disagreement1 need look no further than the still-extant debate regarding the origins and continuing viability of the manifest disregard of the law “doctrine” in American arbitration law. For the ongoing discord regarding that topic is bred out of an artificial fog engendered by the misperception that the phrase manifest disregard of the law has any independent significance in evaluating the more accurately stated issue of whether choice-of-law provisions in contracts subject to arbitration are enforceable under the Federal Arbitration Act (“FAA”) and, if so, to what degree. In a field of law based on the foundational premise that the “‘primary’ purpose of the FAA is to ensure that ‘private agreements to arbitrate are enforced according to their terms,’” one would think that the answer to such a question would, at a minimum, affirm that arbitrators are required to at least conscientiously attempt to apply the parties’ choice of law. Yet, recent statements in dicta by the United States Supreme Court and the continuing disagreement in the academic commentary regarding the origins and import of “manifest disregard” highlight the fact that the right of parties to insist that disputes arising …
*Fellow, College of Commercial Arbitrators; Global Faculty, CEPLMP, University of Dundee, Scotland.