Originally from The American Review of International Arbitration (ARIA)

PAGE PREVIEW

     As far as I can tell, John Fellas and I think alike on most things, both as practicing international arbitrators and as professors of international arbitration law. As arbitrators in practice, all of the awards we have rendered together—whether John chaired, I chaired or we both served as party-appointed arbitrators—were unanimous awards. As professors in academics, we both independently submitted essays—on the occasion of a festschrift in honor of Professor George Bermann —addressing related issues concerning the federal policy in favor of arbitration in the United States. John’s festschrift essay is entitled “Legitimacy and Efficacy in Arbitration” and explores how the ideals of “legitimacy” (i.e., consent to arbitration) and “efficacy” (i.e., viability and efficacy of the arbitral process)—terms coined by Professor Bermann—are balanced in U.S. arbitration law through operation of the equal footing principle that arbitration agreements are to be enforced in the same manner as any other contracts and the federal policy in favor of arbitration.  My festschrift essay is entitled “Why Pro-Arbitration?” and explores why we are “pro-arbitration”—another term coined by Professor Bermann—by examining the rationales for our federal policy favoring arbitration. 

     Not surprisingly, John and I agree on most things about the federal policy in favor of arbitration. We agree that the federal policy favoring arbitration is both ubiquitous and mysterious, ubiquitous because courts invoke it in nearly every arbitration-related case and mysterious because neither the Federal Arbitration Act (“FAA”) nor the courts have ever clearly articulated what that federal pro-arbitration policy actually is. As John has written elsewhere, “no definitive judicial consensus has ever emerged as to what that policy is or its underlying rationale.

     At the heart of the federal policy in favor of arbitration lies a normative vacuum.”  John and I also agree, among other things explored below, that the equal footing principle inspiring the FAA when it was originally promulgated in 1925 is an incomplete and inadequate ideal for arbitration because arbitration agreements are simply not like other contracts, and [we agree] that our pro-arbitration federal policy justifies some arbitration-favoring rules that do not apply to other contracts.