Author: Thomas E. Carbonneau*
Published: May 2013
Case law has been, and continues to be, the primary source of doctrinal content for the American law of arbitration.1 In particular, the U.S. Supreme Court has supplied essential rules and principles, filling gaps where necessary. Its contributions have ranged from establishing the powerfully unifying vehicle of federal preemption to creating a federal policy favoring arbitration absolutely in almost all circumstances, and propounding an courts in the arbitral process, especially at the outset of the proceedings when questions arise about the validity of arbitrator jurisdiction. In U.S. law, the controlling statute, because of its antiquated character, fails to recognize the separability and kompetenz-kompetenz doctrines.4 These legal doctrines are vital to the arbitral process’ independence of operation and its ability to engage in effective self-regulation. Otherwise stated, the capacity of arbitrators to rule in the manner of judges and decide the legitimacy of their own jurisdiction is a central underpinning of arbitral autonomy.
*Orlando Distinguished Professor of Law, Penn State University.