Keynote Address: Arbitration and the Freedom to Associate

Abstract

International arbitration has long and correctly been regarded as the preferred means for resolving commercial and other disputes in transnational settings. This Article considers the reasons for that preference and the legal regimes giving effect to it. The Article argues that the central attraction of international arbitration is the role of party autonomy in designing and implementing dispute resolution procedures. The choice of dispute resolution mechanisms is no less important an expression of party autonomy than the conclusion of a contact or formation of a joint venture or other relationship. On the contrary, the manner in which parties resolve disputes over their relationship is central to the preservation and maintenance of that relationship and is akin to the parties' basic freedoms to contract and to associate.

This Article argues that the parties' autonomy with regard to dispute resolution is recognized and protected by international and national legal instruments. The New York Convention (in Article II) and national arbitration legislation (the Federal Arbitration Act) require recognition of agreements to arbitrate, including through specific performance of those agreements. These protections are an expression of associational freedoms, recognized in most developed legal systems. They are subject to exceptions, for state regulatory interests, in the same manner that other associational liberties are subject to exceptions, playing a role much like constitutional protections of freedoms to associate and contract.