The Assault on Judicial Deference – Vol. 23 No. 3-4

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Author: Thomas E. Carbonneau*

Published: August 2012

Description: Over several decades, the federal policy favoring arbitration created a consistent judicial practice that unequivocally supported the enforceability of arbitral awards. The force and clarity of judicial deference, however, were lessened when courts began minimizing the specialty of labor arbitration and incorporated the so-called common-law grounds into the enforcement regime under the Federal Arbitration Act (“FAA”) § 10.2 Manifest disregard of the law soon became the weapon of choice for disgruntled parties to confound the federal policy favoring arbitration and erect pro forma challenges to awards that, in reality, were free of defects. By definition, manifest disregard permitted courts to examine the arbitrator’s reasoning on the law and thereby to exert control over the substance of arbitrator determinations. Blanket judicial deference, therefore, was qualified and courts could invite themselves onto the privileged turf of the arbitrators’ jurisdiction.

Stealth appeals against arbitral awards continued apace and were reinforced by new doctrinal inventions. The right to seek the clarification of opaque or poorly worded awards was one such device. It was originally reserved for courts that were stymied by the incomprehensible language of an award. They could not …

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*Orlando Distinguished Professor of Law, Penn State University. Penn State Law dedicated Volume 1 of its Yearbook on Arbitration Law and Practice to the memory of Professor Hans Smit. Professor Smit was a pillar in the edifice of law surrounding international litigation and arbitration. He was the father of § 1782, “fast-track” arbitration, and – more recently – of the view that parties and arbitrators should engage in a consultative relationship prior to the rendition of the award. Hans was a talented writer and always a provocative thinker. His articles and lectures were a beacon of light in a world often misguided by ostentatious rhetoric and infertile ideas. He founded The American Review of International Arbitration and, with Vratislav Pechota, assembled an eight-volume work entitled The Smit Guides to International Arbitration. He was a remarkable academic lawyer who made an exceptional and unique contribution to law teaching and the development of law in transborder fields. It is difficult to accept that we shall be without his guidance in these areas.