Author: Thomas E. Carbonneau*
Published: January 2009
Authority of the Arbitral Tribunal
Arbitrators and Arbitral Tribunals
I. INTRODUCTION: THE U.S. SUPREME COURT AND ARBITRATION
There is no mistaking the force and direction of the federal judicial policy on arbitration. For more than forty years, the U.S. Supreme Court has touted the recourse to arbitration; more specifically, it has protected arbitration from inhospitable state regulation,3 contract challenges based on formation deficiencies,4 and subject matter limitations on its scope of application. In more than forty decisional pronouncements, the Court altered significant parts of the Federal Arbitration Act (FAA), the governing statute, to make it the repository of an unwavering judicial policy in favor of arbitration. While the “edifice” of doctrine was periodically rendered unsteady by the Court’s makeshift analytical inventions, its rulings on arbitration have always been characterized by an unshakable positivistic end. With the exception of an isolated case, the judicial doctrine on arbitration constantly endeavors to achieve the enforcement of arbitral agreements and awards and thereby erect and maintain a de facto, albeit functional, private process for the adjudication of civil disputes.
*Orlando Distinguished Professor of Law, Penn State University. In memory of Elizabeth.