Leonard L Scheinhoitz is the head of Reed Smith Shaw & McClay's labor law group in Pittsburgh.
Philip A. Miscimarra is an attorney in Reed Smith Shaw & McClay's labor law group and a Legal Consultant and Research Associate with the Industrial Research Unit at the University of Pennsylvar^ia's Wharton School in Philadelphia.
The authors would like to thank Hollis T. Hurd, Esq.. for his insightful suggestions in the employee benefits area. They are also grateful to Michael H. Ginsberg and Carole S. Katz for legal research and editorial assistance. This article is based on an address delivered at a workshop for arbitrators and practitioners conducted by the American Arbitration Association in Hershey, Pennsylvania, on July 20, 1984.
In spite of much discussion, there still appears to be no easy answer to the question "Should arbitrators consider statutory issues?" A more constructive approach to this problem results from reformulating the issue as "whether and under what circumstances is an arbitrator's consideration of statutory issues appropriate?"
This article takes a step back and evaluates the underlying reasons for arbitration's preferred status as a private method of dispute resolution. If case-by-case consideration is given to four guidelines—dealing with arbitrator authority, competence, arbitration procedure, and finality— some answers emerge as to whether and when statutory issues should be considered in arbitration.
For well over 25 years, a fierce battle has raged among arbitrators, labor relations practitioners, and legal scholars as to whether an arbitrator can properly consider statutory issues in arbitration. Developments in recent years have brought the "external law in arbitration" issue into sharp focus.