Daniel G. Collins is Professor of Law, New York University School of Law. The author wishes to express his appreciation to Professor Martin Domke, a faculty colleague and a Vice President of the American Arbitration Association, for encouraging him to pursue this topic. The author also wishes to express his appreciation for the research assistance of Paul S. Schreiber, a third-year student at the School of Law.
The Uniform Commercial/ Code, now in effect in most States, gives legal recognition to the businessman's informal way of concluding sales agreements. But arbitration clauses are generally held to "a higher threshold of clarity." the author points out. This raises anew at least two questions: Is the arbitration clause "separable" from the contract In which it is found? Con on award be attacked on the ground that the arbitrator did not follow the substantive law of the Code?
The subject of arbitration is not mentioned in the text of the Uniform Commercial Code or, in any significant way, in its draftsmen's comments.^ From the viewpoint of codification of commercial law, the desirability of this omission is debatable. The omission is not without some logic, however, in the case of the Uniform Commercial Code, given certain of that document's tenets. The Code, first of all, does not purport to be a codification of all matters that bear on the commercial transaction.^ Even more important, a principal stated aim of the Code is "to permit the continued expansion of commercial practices" by bargain and custom.* This being so, there is something to be said for the Code's leaving arbitration--a prime vehicle for achieving the goal of commercially moulded legal devices--to develop with as little interference as possible.