Alan Scott Rau, Robert F. Windfohr & Anne Burnett Windfohr Professor of Law, The University of Texas at Austin School of Law. I am grateful to Richard Markovits and Catherine Pédamon for their comments—and particularly for their help in pruning away much of what is immoderate and self-indulgent in my manner of expression. I guess I must assume responsibility for what remains.
“Arbitrability” and Judicial Review: A Brief Rejoinder
By Alan Scott Rau
I. THIS IS “ARBITRABILITY” “How few people think . . . things[,] not words.” 4 Let’s begin with what is probably the most common, and surely the least problematic, of cases—an arbitration clause that tells us that “errors of law shall be subject to appeal.”5 It is, I take it, a perfectly unexceptional—and therefore uninteresting—point that contracting parties can tailor the scope of “arbitrable issues” as they wish, to fit their own particular needs, circumstances, or desires. They may agree to arbitrate claims of breach of contract—but not claims of misappropriation of trade secrets; they may choose to arbitrate claims of past breaches—but not claims for future adjustments of the contract. So also, they can vary the many