Originially from: World Arbitration and Mediation Review (WAMR)

Costs and Value of Arbitration
by
Lisa Brener*
Part One
Introduction
We have come a long way on the continuum that began with the courts’ consistent refusal
to enforce agreements to arbitrate.1 It may be that the time will come when courts will refrain
not only from invalidating but even from reviewing any term, condition, or stipulation contained
in these agreements. At that outermost point on the continuum, courts will relinquish to
contracting parties complete autonomy and freedom to construct a legal system and arbitral rules
unique to their commercial transactions. The only constraints on the system that parties design
will be imposed by the limits of their own creativity, wisdom, and bargaining power.
Perhaps we are almost there. It has now been more than a decade since the U.S. Supreme
Court informed us that “[a]rbitration under the [Federal Arbitration] Act is a matter of consent,
not coercion, and parties are generally free to structure their arbitration agreements as they see
fit. Just as they may limit by contract the issues which they will arbitrate…so too may they
specify by contract the rules under which that arbitration will be conducted.”2 According to our
highest court, it was the intent of Congress to “place…[arbitration] agreements ‘upon the same
footing as other contracts.’