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The Culture of American Arbitration and the Lessons of ADR


Alan Scott Rau


University of Texas at Austin School of Law; University of Texas - School of Law, The Kay Bailey Hutchison Center for Energy, Law, and Business


Texas International Law Journal, 2005

Abstract:     
Rather than rehearse once again the cheerful tale of harmonization, or convergence, or globalization in the practice of international arbitration, this article tells a different story, one of particularity and divergence. It calls attention to certain distinctive features of our understanding of arbitration, which I identify as

- contractual - involving the freedom of contracting parties to alter the face of the arbitration process;

- expansionist, or at least elastic - meaning that the gravitational force of arbitration has tended to sweep up all sorts of other alternative dispute resolution mechanisms, causing them to benefit from the legitimacy, and statutory protection, accorded the arbitration process; and

- alegal - involving a recognition that despite the red herring of such notions as the manifest disregard of the law, we do not suppose that the arbitration process presupposes a decisionmaker who acts by formulating, applying, and communicating general principles of decisions, or rules.

All of these distinctive features of the American culture of arbitration, I suggest, are interconnected - and all are rooted in an instrumentalist legal culture that shares these same characteristics, which pays little attention to definitional niceties and to historical archetypes, and which has itself as a consequence been congenial to experimentation with other alternative dispute resolution mechanisms.

Number of Pages in PDF File: 126

Keywords: Arbitration, ADR

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Date posted: May 13, 2005  

Suggested Citation

Rau, Alan Scott, The Culture of American Arbitration and the Lessons of ADR. Texas International Law Journal, 2005. Available at SSRN: http://ssrn.com/abstract=721023

Contact Information

Alan Scott Rau (Contact Author)
University of Texas at Austin School of Law ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States

University of Texas - School of Law, The Kay Bailey Hutchison Center for Energy, Law, and Business
Austin, TX
United States

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