2013] ARBITRAL AUTONOMY 3
of scholarly attention. Autonomous arbitration occurs when it is
initiated, conducted, and concluded, and the arbitration award is
enforced, all without any need or desire for judicial intervention.3
Endorsing the autonomy paradigm in its own words, the U.S.
Supreme Court has affirmed “the unmistakably clear congressional
purpose that the arbitration procedure, when selected by the parties
to a contract, be speedy and not subject to delay and obstruction in
the courts.”4 Derived from the contract theory of arbitration,5
arbitration statutes, court rulings, and arbitrational institutional rules,
the autonomy paradigm proposed in this Article offers concrete
suggestions for minimizing court intervention in arbitration
processes and outcomes. If these proposals aimed at transforming
the technical infrastructure of arbitration law6 are adopted,
arbitration will undergo a revolutionary change, developing into a
complete alternative to litigation. In presenting these proposals, this
Article invites scholars, lawyers, and judges to further refine the
concept of arbitral autonomy (or the “autonomy paradigm”)7 that is
framed in this Article.
The autonomy paradigm does not advocate that arbitration, as a
method of dispute resolution, is inherently superior to litigation.
Rather, litigation conducted in public courts is critical for clarifying
cases and statutes for future guidance. Arbitration cannot supplant
litigation. In the past few decades, however, arbitration has gone
well beyond commercial dispute resolution; it has proliferated in
numerous areas of law reserved for litigation, including antitrust
laws and statutory rights. The historical common law prejudice
against pre-dispute arbitration clauses has waned, expanding the
scope of arbitration.8 Courts burdened with cases are eager to
3. Developments in the Law — The Paths of Civil Litiga tion, 113 HARV. L.
REV. 1851, 1862−63 (2000) (stating that courts and commentators are conflicted
over the efficiency benefits and fairness concerns of arbitration).
4. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404
5. The contract theory of arbitration, as explained in this Article, states that
arbitration is a creature of contract. Arbitration is a method of dispute resolution
that parties choose by means of a contract. Under the contract theory, therefore,
arbitration cannot be imposed on a party without the party’s consent.
6. Unless otherwise indicated, “arbitration law” refers to the Federal
Arbitration Act, the Uniform Arbitration Act, st ate and federal cases decided
under these statutes, and common law. Even though this Article is confined to the
United States, the principles discussed may have universal appeal and application.
9 U.S.C. §§ 1–16 (2006); UNIF. ARBITRATION ACT (amended 2000), 1 U.L.A. 1
7. This Article uses “arbitral auto nomy” and “autonomy paradigm” as
8. Common law was averse to enforcing pre-dispute arbitration agreements
but was wholly willing to enforce post-dispute arbitration agreements. In the 19th