Basic Concepts, Principles, and Issues - Chapter 2 - Law and Practice of Arbitration - 4th Edition
Thomas E. Carbonneau is the Samuel P. Orlando Distinguished Professor of Law at Penn State's Dickinson School of Law. Professor Carbonneau is commonly regarded as one of the world’s leading experts on domestic and international arbitration. He serves on the editorial board of La Revue de L'Arbitrage and is the author of ten highly acclaimed books and 75 scholarly and professional articles on arbitration. Professor Carbonneau and was formerly the Moise S. Steeg Jr. Professor of International Law at Tulane University School of Law.
Originally from Law and Practice of Arbitration - 4th Edition
The law of arbitration is comprised of a set of basic principles, concepts, and doctrines. Understanding the latter is essential to writing arbitration agreements, participating in the arbitral process, and conducting judicial litigation relating to it.
1. Party Autonomy
The primary rule that governs the law, practice, and regulation of arbitration in the vast majority of national jurisdictions, including the United States, is the principle of freedom of contract. To civil law lawyers, this is known as the party autonomy concept or the will of the parties. In Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University,1 the U.S. Supreme Court endorsed this fundamental principle when it held that:
The FAA does not require parties to arbitrate when they have not agreed to do so . . . nor does it prevent parties who do agree to arbitrate from excluding certain claims from the scope of their arbitration agreement. . . . It simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms. . . . Arbitration under the Act is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit. . . .2
Freedom of contract allows arbitrating parties to write their own rules of arbitration—in effect, it permits them to establish the law of arbitration for their transaction. The parties can customize the arbitral process to their needs—eliminate legal rules or trial techniques that might prove inconvenient or unsuitable, and maintain procedural elements they believe necessary to achieving fairness, finality, and functionality.
3. The Terms of Reference
5. The Separability Doctrine and Kompetenz-Kompetenz
6. Adjudicatory Powers of the Arbitrators
7. Enforcement of Awards
8. Consolidation and Class Actions in Arbitration
9. Fast-Track Arbitration
10. Selecting Arbitrators
11. Expanding the Reach of Arbitration Agreements
12. Waiver of the Right to Arbitrate
13. Multijurisdictional Practice in Arbitration
14. Immunity in Arbitration
15. Arbitral Institutions
16. "Anational" Arbitration: The Lex Loci Arbitri and the Lex Mercatoria
17. Judicial Supervision of the Merits of Awards in Anglo-Saxon Laws
18. International Treaties and National Statutes on Arbitration
19. Contemporary Arbitration Statutes