A Few Key Concepts In Arbitration Agreements And Disputes
Introduction

“Arbitration is a creature of contract.” This does not mean that arbitration is a fictional creation or some other-worldly lifeform. But the phrase is shadowy in that it doesn’t convey much useful information. Notwithstanding, it is perhaps the single most repeated phrase found across legal opinions and scholarly articles concerning arbitration.

Many lay people and even legal practitioners fail to perceive arbitration’s contours, perhaps in part because of the use of unilluminating phrases like the above. Specifically, although contracts provide the basis for arbitration, several layers of mandatory or default norms apply in arbitration. At times, arbitrating parties find this surprising. These norms are embodied in statutes, judge-made case law, and the rules of arbitral forums—in addition to contractual commitments. For this reason, dwelling on arbitration’s status as a “creature from the contract lagoon” has limited utility.

To ensure parties adequately consider the implications and consequences of agreements to arbitrate, they must understand the relevant legal background. Further, a nuanced understanding of arbitration can be necessary to successfully evaluate and undertake a dispute. In many respects, dispute resolution through arbitration is much like litigation. In others, there are important differences. This blog introduces key concepts and conveys useful information concerning arbitration to an unfamiliar reader. I intend, in a follow up piece, to discuss and demonstrate practical consequences and applications of at least some of these concepts.

Discussion

Here it goes:

  1. Arbitration is a Creature of Contract.
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