Originially from: World Arbitration and Mediation Review (WAMR) 2002 Vol. 13, No. 3

Rau Responds to the Holstein Article
“Arbitrability” and Judicial Review: A Brief Rejoinder
Alan Scott Rau*
The editor of WAMR invited me to respond to Ms. Holstein’s note on the
legitimacy of expanding “judicial review” of awards by contract.1 Doing so gives
me the opportunity to congratulate Ms. Holstein on a most articulate piece—free
to a considerable extent of the rhetoric, rigidity, and question-begging that one is
accustomed to find in so many discussions of this subject. And not least, it allows
me to bask in that warm, almost sensual pleasure known only to academics—and
which consists in being able contentedly to dwell on and embroider what one has
already written.
In concluding that “neither the FAA nor U.S. Supreme Court precedent
provides any basis for the contractual expansion of judicial review”—and indeed
that contractually expanded review “contravenes the policy objectives underlying
the FAA”—it is obvious that Ms. Holstein has arrived at the same point as many
distinguished members of the American arbitration community. By contrast, my
total inability to see this even as a close case is beginning to make me feel
somewhat isolated—as if I were missing some essential cognitive faculty. Let me
try once again to muster some support for what I really think should go without
saying: I can do this by asserting four rather straightforward propositions, all of
which seem critical to this discussion and which I have put forward in the past.2 I
am afraid that these are not addressed (or addressed only in the most desultory
and flawed fashion) in Ms. Holstein’s note.
I. This Is “Arbitrability”
“How few people think…things, not words.”3
Let’s begin with what is probably the most common, and surely the least
problematical, of cases—an arbitration clause which tells us that “errors of law
shall be subject to appeal.”