Hiro Aragaki’s recent article, Arbitration: Creature of Contract, Pillar of Procedure, 8 Y.B. on Arb. & Mediation 2 (2016), takes a hard, HARD look at the intersection of contractarian values like consent and autonomy in the context of arbitration. The headline is that he begs us to :
stop and think twice before invoking the mantra that “arbitration is a creature of contract.” The problem as I see it is that the phrase functions ideologically–that is, it makes a claim that appears entirely legitimate but for that reason has the potential to mask negative consequences that we would otherwise consider unjustified. Thus, on one level it is difficult to disagree with the propositional content of the mantra because, unlike litigation, arbitration almost by definition has to begin with a voluntary agreement. But this truth, coupled with the phrase’s sing-song quality, blinds us to the fact that the phrase actually goes one step further. Wittingly or not, it helps justify a normative vision of arbitration’s essential nature as a matter of unfettered choice, and of arbitration law’s preeminent purpose as interfering with those choices in the least intrusive way possible.
There’s much in Hiro’s article to commend, and I suspect strongly I’ll be assigning it to my Arbitration class this Spring.