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Arbitration as Contract: The Need for a Fully Developed and Comprehensive Set of Statutory Default Legal Rules

Jack Graves, Touro Law Center

Abstract

This article addresses an increasingly important topic in today’s commercial world—the United States Federal Arbitration Act. While arbitration under this Act has been subject to ever increasing criticism and calls for reform on a variety of fronts (often from the perspective of consumer or employment arbitration), this article focuses specifically on commercial, business-to-business arbitration and critically evaluates the Act as a set of default legal rules governing arbitration as a unique contractual business relationship.

The article first looks at arbitration from a contractual default rules perspective, and then employs this perspective to analyze (1) the existing federal statutory scheme, (2) the developing body of federal “common law” governing arbitration; (3) the potential impact of state legislation governing arbitration; and (4) the use of private rules to govern arbitration. Finally, the article looks at the related doctrines of “competence-competence” and separability under U.S. law, specifically focusing on the Supreme Court’s recent decision in Rent-A-Center, West, Inc. v. Jackson. The article ultimately concludes with a call for an entirely new federal statute governing both domestic and international commercial, business-to-business arbitration.

Suggested Citation

Jack Graves, Arbitration as Contract: The Need for a Fully Developed and Comprehensive Set of Statutory Default Legal Rules, forthcoming 2 William & Mary Business Law Review __ (2010)