Consideration of 'Contracting Culture' in Enforcing Arbitration Provisions
St. John's Law Review, Vol. 81, pp. 123-172, 2007
51 Pages Posted: 21 Sep 2008
Date Written: September 19, 2008
The Federal Arbitration Act mandates strict and uniform enforcement of standardized pre-dispute arbitration provisions. This may not be proper, however, in light of the importance of context with respect to these provisions. This Article therefore seeks to remind courts of the importance of exchange context by proposing a "contracting culture" continuum for enforcing these arbitration provisions that acknowledges the impacts of these provisions in a particular communal context. "Contracting culture" encompasses economic and non-economic relational factors that impact dispute resolution agreements, but go beyond common conceptions of "culture" focused on ethnicity, nationality, or religion. It also explores beyond the primary domestic versus international factors and spans contracting cultures ranging from "intra communal" to "extra communal" in order to highlight how parties' relations, understandings, and values may have the greatest impact on the fairness of form arbitration provisions.
Keywords: contract, consumer, dispute resolution, consumer law, commercial law, arbitration, pre-dispute arbitration provisions, form arbitration provisions, Federal Arbitration Act, contracting culture, fairness
JEL Classification: K12, K41
Suggested Citation: Suggested Citation