Post-Hearing Issues In International Arbitration - Chapter 7 - The Rise in Judicial Hostility to Arbitration: Revisiting Hall Street Associates
Thomas E. Carbonneau is the Orlando Distinguished Professor of Law at Penn State University. In conjunction with the Chair, he is the Faculty Director of the Institute of Arbitration Law and Practice at Penn State and the Director of the law school's summer program in arbitration at McGill Law Faculty in Montreal. Professor Carbonneau has written a number of books, including volume 31 of Moore's Federal Practice (3d ed.) on Federal Arbitration Law, Cases and Materials on Arbitration Law and Practice (6th ed.), Arbitration in a Nutshell (3d ed.), and The Law and Practice of Arbitration (4th ed.). In addition to a variety of book chapters, he has written more than 75 law journal articles, including a recent assessment, entitled "The Assault on Judicial Deference," published in the American Review of International Arbitration. He is the founding faculty advisor to the Yearbook on Arbitration and Mediation at Penn State Law.
Originally from: Post-Hearing Issues in International Arbitration
When the U.S. Supreme Court granted certiorari in Hall Street Associates, LLC v. Mattel, Inc.,1 commentators expected the Court to resolve the split among the federal circuits regarding the validity and enforceability of ‘opt-in’ agreements.2 Since the late 1990s, these agreements had become a means through which contracting parties could obtain enhanced judicial supervision of arbitral awards by providing for judicial review of the merits of arbitrator rulings.3 While commentators got a resolution of the split, they received a great deal more than promised.4 In effect, the Court concluded that the statutory framework for enforcement applied as a matter of law and, therefore, was solely controlling in all circumstances of enforcement.5 The framework was not merely a regulatory fallback by which to provide rules for enforcement when the contract was silent.6 The statutory framework provided the governing law and could not be modified by contract.7
I. Introduction
II. The Agreement to Arbitrate in Hall Street Associates
III. The Hall Street Court's Perception of Arbitral Doctrine under the FAA
IV. The Circuit Split on "Opt-In" Agreements
V. Manifest Disregard in the Majority Opinion
VI. The Immutable Jurisdiction of the Statutory Text
VII. The Amici
VIII. Mystifying Dicta
IX. The Dissents
X. The New Appraisal
XI. Conclusion