Originally from the American Review of International Arbitration - (ARIA)

ABSTRACT

This essay argues that greater public interest concerns are engaged when attempts are made to contractually expand the grounds for judicial review set out in the Federal Arbitration Act in contrast to instances of contractual curtailment. Contractual expansion might require the courts to exceed their legislatively conferred powers and consume more judicial resources. The state, as a matter of policy, should not prioritize private parties’ interests in extending oversight over the current boundaries that give legal certainty and finality to awards rendered. Overreaching could also prejudicially alter perceptions about the institutional integrity of both the courts and the arbitral process. All these concerns powerfully militate against such an approach, unless it is heavily policed. A jurisdictionalist view therefore ought to ordinarily prevail here. On the other hand, with contractual curtailment, there is no demand on public resources; party autonomy should override quality concerns if parties willingly accept the courts’ limited review role and the enforcement difficulties that will result. A contractualist view ought to be preferred in this instance.