58 Pages Posted: 23 Nov 2013 Last revised: 5 Dec 2013
Date Written: November 22, 2013
This Article presents concrete proposals to amend the current arbitration law for minimizing court intervention into arbitration proceedings and enforcement of arbitral awards. As a method of dispute resolution, arbitration offers an alternative to litigation. Yet arbitration is frequently interspersed with litigation. As a true alternative, arbitration should be, and can be, autonomous, that is, litigation-free. Arbitral autonomy fails when parties go to court to challenge validity of the arbitration agreement, to obtain emergency relief, or to contest enforceability of the award, among other reasons. To accomplish litigation-free arbitration, first, the need to go to court must be minimized; second, the desire to go to court must be deterred. In developing arbitral autonomy, the Article offers theoretically defensible and practically feasible proposals to remove both the need and the desire to go to court. In endorsing arbitral autonomy, however, the Article warns against arbitration blackout that thrives on secrecy, quasi-lawlessness, and pro-arbitration judicial exuberance, a blackout that hurts weak and vulnerable parties drawn into mandatory arbitration.
Keywords: Arbitration, mandatory arbitration clauses, federal arbitration, state arbitration, litigation, consumer protection, preemption
Suggested Citation: Suggested Citation
Khan, Ali, Arbitral Autonomy (November 22, 2013). Louisiana Law Review, Vol. 74, No. 1, 2013. Available at SSRN: https://ssrn.com/abstract=2358541