Originally from American Review of International Arbitration - ARIA

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 I. INTRODUCTION—THE VENERABLE CASE OF “FOG EVERYWHERE”
VS. “ON A CLEAR DAY YOU CAN SEE FOREVER”
One in search of a validating contemporary illustration of the legal system as a
fog-ridden environment of confusion and disagreement1 need look no further than
the still-extant debate regarding the origins and continuing viability of the
manifest disregard of the law “doctrine” in American arbitration law.2 For the
ongoing discord regarding that topic is bred out of an artificial fog engendered by
the misperception that the phrase manifest disregard of the law has any
independent significance in evaluating the more accurately stated issue of whether
choice-of-law provisions in contracts subject to arbitration are enforceable under
the Federal Arbitration Act (“FAA”)3 and, if so, to what degree.
In a field of law based on the foundational premise that the “‘primary’
purpose of the FAA is to ensure that ‘private agreements to arbitrate are enforced
according to their terms,’”4 one would think that the answer to such a question
would, at a minimum, affirm that arbitrators are required to at least
conscientiously attempt to apply the parties’ choice of law. Yet, recent statements
in dicta by the United States Supreme Court and the continuing disagreement in
the academic commentary regarding the origins and import of “manifest
disregard” highlight the fact that the right of parties to insist that disputes arising