Abstract

http://ssrn.com/abstract=353340
 


 



The Lawlessness of Arbitration


Kenneth S. Abraham


University of Virginia School of Law

J.W. Montgomery III


Jones, Day, Reavis & Pogue - Pittsburgh

December 2002

UVA School of Law, Public Law Research Paper No. 02-09

Abstract:     
This Essay identifies and analyzes the problems that may arise when insurance coverage disputes are subject to mandatory, binding arbitration. We argue that arbitration often involves a form of contractual "lawlessness" that is especially undesirable in claims that involve new legal issues. This lawlessness not only adversely affects the parties to each dispute, but the legal system as a whole. As a consequence, in our view insurance policyholders should be reluctant to purchase policies that require binding arbitration of coverage disputes. In addition, since the problems that we identify are likely to arise not only in insurance, where new, cutting-edge issues have regularly emerged for decades, but also in other kinds of disputes posing new legal issues, the legal system should reconsider the highly favorable stance that it takes toward mandatory, binding arbitration in general, so as to take account of the negative effects of arbitration lawlessness. A neutral legal and judicial stance toward binding arbitration would be more appropriate.

Number of Pages in PDF File: 19

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Date posted: November 22, 2002  

Suggested Citation

Abraham, Kenneth S. and Montgomery, J.W., The Lawlessness of Arbitration (December 2002). UVA School of Law, Public Law Research Paper No. 02-09. Available at SSRN: http://ssrn.com/abstract=353340 or http://dx.doi.org/10.2139/ssrn.353340

Contact Information

Kenneth S. Abraham (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
434-924-3616 (Phone)
434-982-2845 (Fax)

J.W. Montgomery III
Jones, Day, Reavis & Pogue - Pittsburgh ( email )
One Mellon Bank Center, 31st Floor
500 Grant Street
Pittsburgh, PA 15219-2502
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