Private Ordering and Commercial Arbitration: Lasting Lessons from Mentschikoff

18 Pages Posted: 22 Mar 2019

See all articles by Stephen J. Ware

Stephen J. Ware

University of Kansas - School of Law

Date Written: February 28, 2019

Abstract

“Private ordering” is an important concept and commonly-used phrase in legal scholarship. At least three “ordering” activities often performed by governments can be privatized: lawmaking, adjudication, and enforcement of adjudicators’ decisions. Distinguishing among these activities and offering lasting lessons on their privatization — but nowadays not often credited for doing so — is Soia Mentschikoff’s seminal 1961 article, Commercial Arbitration. This short piece reconsiders Mentschikoff’s classic article in light of contemporary scholarship on private ordering and credits Commercial Arbitration with teaching us lasting lessons about commercial arbitration and even about commerce itself. Key to these lessons is Mentschikoff’s empirical study of trade association arbitration and her comparison of such industry-specific arbitration with the more general commercial arbitration exemplified by the American Arbitration Association (AAA). This comparison shows arbitration’s ability — especially in the “core commercial” context of trade associations — to privatize all three of the aforementioned “ordering” activities: lawmaking, adjudication, and enforcement of adjudicators’ decisions. Mentschikoff thus builds impressively from the humble context of routine sales disputes to enduring insights about the role of private ordering in the production, application, and enforcement of law.

Keywords: arbitration, commercial, trade association, Mentschikoff, international, private ordering

Suggested Citation

Ware, Stephen J., Private Ordering and Commercial Arbitration: Lasting Lessons from Mentschikoff (February 28, 2019). Journal of Dispute Resolution, Vol. 2019, No. 1, 2019. Available at SSRN: https://ssrn.com/abstract=3344816

Stephen J. Ware (Contact Author)

University of Kansas - School of Law ( email )

Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States
785-864-9209 (Phone)

HOME PAGE: http://www.law.ku.edu/ware

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