In this Article, Professor Guzman resolves the tension that exists between mandatory legal rules and the widespread use of arbitration. In recent years, U. S. courts have expanded the range of enforceable arbitration agreements to include agreements that cover areas of law previously thought to be within the exclusive domain of courts. Among the disputes that are now deemed arbitrable are those that implicate mandatory rules such as securities and antitrust laws. Under current law, the willingness of courts to enforce arbitration agreements and to uphold the resulting arbitral awards with minimal judicial review makes it possible for the parties to a transaction to avoid mandatory rules of law. Until now, it has generally been believed that the legal system must either restrict the use of arbitration or permit arbitration and accept that doing so turns all mandatory rules into default rules. This Article proposes a mechanism that permits the continued use of arbitration without abandoning the mandatory nature of legal rules. The recommended approach, called "arbitrator liability," allows the losing party in an arbitration to sue the arbitrator on the ground that a mandatory rule was ignored. Under existing legal rules, arbitrators have an incentive to ignore mandatory rules of law in favor of the contractual terms agreed to by the parties. Arbitrator liability gives arbitrators an incentive to apply mandatory rules of law. Giving proper incentives to arbitrators will ensure that mandatory rules are enforced, thereby eliminating the incentive for the parties to draft arbitration agreements intended to avoid those rules. The benefits of arbitration can be retained without sacrificing the ability of lawmakers to adopt mandatory rules.
Andrew T. Guzman,
Arbitrator Liability: Reconciling Arbitration and Mandatory Rules,
49 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol49/iss5/2