Whose Law Is It Anyway? The Contract Interpretation Problem in U.S. Arbitration Jurisprudence – Vol. 27 No. 4

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Author: E. Jin Lee*

Published: April 2017

United States
Arbitrators and Arbitral Tribunals
Arbitral Process
Agreement to Arbitrate
Court Decisions


The role that state contract law plays in the interpretation of arbitration agreements is often overlooked. Its surreptitious presence in the case law is seldom mentioned, treated instead as the inconvenient stepchild of the fact that there is no federal common law of contracts.It is accepted that the U.S. Federal Arbitration Act (“FAA”) pre-empts “anti-arbitration” state law measures taken against arbitration agreements. However, until recently, courts benefitted from a safe harbor provided by the accepted principle that arbitration agreements are usually interpreted pursuant to state contract law. Courts sometimes seize upon this principle to take idiosyncratic, yet outcome-determinative, interpretations of an arbitration agreement’s enforceability.

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*J.D., Columbia Law School; LL.B., King’s College London, School of Law. Gratitude is due to Professors George A. Bermann, Viren M. Mascarenhas and Rahim Moloo for their guidance. Mistakes are my own.