Statutory Bases for Arbitration - Chapter 2 - Case Preparation and Presentation: A Guide for Arbitration Advocates and Arbitrators
Rocco M. Scanza and Jay E. Grenig both serve on the American Arbitration Association's labor panel.
Mr. Scanza is an Attorney, Arbitrator and Mediator of labor and employment disputes. He is also the Executive Director of Cornell University's Scheinman Institute on Conflict Resolution, where he teaches courses in workplace alternative dispute resolution. Mr. Scanza was formerly a national Vice President at the American Arbitration Association. He graduated from Queens College in New York City and Loyola Law School of Los Angeles. He lives and works in Ithaca, N.Y.
Mr. Grenig is a Professor of Law at Marquette University Law School. He has served as an arbitrator or mediator in over 2,000 labor and employment disputes. A member of the National Academy of Arbitrators, the American Law Institute, and the Order of the Coif, Mr. Grenig is also a fellow of the College of Labor and Employment Lawyers. He formerly chaired the Labor and Employment Law Section of the Association of American Law Schools and served as a consultant to the National Commission on Employment Policy. He has written or co-written numerous books and articles.
§ 2:01 COMMON LAW ORIGINS OF ARBITRATION
Arbitration has common law origins.1 Under common law, an agreement to arbitrate may be oral or in writing. A common law arbitration agreement is enforceable if the parties have submitted the matter to arbitration, and an arbitrator’s award has been rendered.2 Where the parties have not submitted the matter to arbitration and an arbitrator has not been rendered an award, the arbitration agreement is not enforceable and a party may bring a court action to resolve the dispute.
Under the common law, the parties may revoke an agreement to submit a matter to arbitration at any time before the award is signed by the arbitrators and served on the parties. The courts apparently refused to permit their jurisdiction to be ousted by contract.3
Enforcement of common law arbitration awards was based on the parties' contract being deemed the submission. As to each matter arbitrated, the award was invalid, if either it went beyond the scope of the submission or it fell short of deciding all issues submitted.
Nearly all states have altered the common law rules of arbitration by statute. A few states have altered the common law rules of arbitration by judicial decision.4 Nonetheless, common law arbitration still exists together with statutory arbitration. An arbitration proceeding is considered to be a statutory arbitration proceeding where the proceeding satisfies applicable statutory requirements, or where the parties proceed in the manner contemplated by the statute even though the arbitration agreement does not refer to the statute.5