Arbitral Autonomy

Author:L. Ali Khan
Position::Professor of Law, Washburn University
Pages:1-58
SUMMARY

This Article presents concrete proposals to amend the current arbitration law for minimizing court intervention into arbitration proceedings and enforcement of arbitral awards. As a method of dispute resolution, arbitration offers an alternative to litigation. Yet arbitration is frequently interspersed with litigation. As a true alternative, arbitration can and should be autonomous, that is,... (see full summary)

 
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Arbitral Autonomy
L. Ali Khan
ABSTRACT
This Article presents concrete proposals to amend the current
arbitration law for minimizing court intervention into arbitration
proceedings and enforcement of arbitral awards. As a method of
dispute resolution, arbitration offers an alternative to litigation. Yet
arbitration is frequently interspersed with litigation. As a true
alternative, arbitration can and should be autonomous, that is,
litigation free. Arbitral autonomy fails when parties go to court to
challenge the validity of the arbitration agreement, to obtain
emergency relief, or to contest enforceability of the award, among
other reasons. To accomplish litigation-free arbitration, first, the
need to go to court must be minimized; second, the desire to go to
court must be deterred. In developing arbitral autonomy, this Article
offers theoretically defensible and practically feasible proposals to
remove both the need and the desire to go to court. In endorsing
arbitral autonomy, however, this Article warns against an
arbitration blackout that thrives on secrecy, quasi-lawlessness, and
pro-arbitration judicial exuberance—a blackout that hurts weak and
vulnerable parties drawn into mandatory arbitration.
TABLE OF CONTENTS
Abstract ................................................................................1
I. Introduction ..........................................................................2
II. Forfeiting Litigation .............................................................8
A. Right to Litigation ........................................................8
B. Foregoing Litigation Rights ........................................12
Copyright 2013, by L. ALI KHAN.
Professor of Law, Washburn University. I am grateful to a number of
colleagues for making instructive comments when I presented the thesis of this
Article at a faculty development workshop in 2011. Freddy Sourgens and Patricia
Judd offered useful suggestions to improve the thesis of the Article. I also wish to
thank scores of students who, while studying arbitration law with me, reacted to
and commented on the ideas that would over the years develop into the concept of
arbitral autonomy. This Article is dedicated to Syed Maqbool Alam and Tanvir
Ahmed Khan, friends who died long before death was due.
2 LOUISIANA LAW REVIEW [Vol. 74
III. Attributes of Arbitral Autonomy .......................................14
IV. Autonomy and Arbitrability................................................17
A. State Non-arbitrability ................................................18
B. Party Non-arbitrability ................................................23
1. Prohibiting Fractional Arbitration ....................... 24
2. Arbitrating Fractional Arbitration ....................... 25
V. Severability Doctrine ..........................................................28
A. Existence and Enforceability ......................................31
B. Revisiting Volt ............................................................33
VI. Parity Principle ...................................................................35
A. Preliminary Relief .......................................................36
B. Emergency Relief .......................................................38
C. Exemplary Relief ........................................................39
VII. Vacating Arbitration Awards ..............................................42
VIII. Arbitration Blackout ...........................................................46
A. Arbitration Secrecy .....................................................49
B. Quasi-lawlessness .......................................................51
C. Reasonless Awards .....................................................52
D. Pro-arbitration Exuberance .........................................55
IX. Conclusion ..........................................................................57
I. INTRODUCTION
In 1981, the Connecticut Supreme Court offered an insightful
paradigm: “Arbitration is a contractual remedy designed to expedite
informal dispute resolution. Its autonomy requires a minimum of
judicial intrusion.”1 Although other jurisdictions rarely cite the
Connecticut court’s words,2 the autonomy of arbitration, as a
guiding paradigm for restraining judicial intrusion, is a topic in need
1. State v. Conn. Emps. Union Indep., 440 A.2d 229, 230 (Conn. 1981)
(citations omitted).
2. As of February 14, 2013, the Westlaw “all cases” database revealed only
seven cases, all in Connecticut , which repeat this formulation of the autonomy of
arbitration.
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, 186263 (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
(1967).
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
(2009).
7. This Article uses “arbitral auto nomy” and “autonomy paradigm” as
synonymous concepts.
8. Common law was averse to enforcing pre-dispute arbitration agreements
but was wholly willing to enforce post-dispute arbitration agreements. In the 19th

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