Arbitration in the Age of COVID: Examining Arbitration's Move Online

Abstract

Arbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution (ODR), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof. Online Arbitration (OArb) is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act (FAA). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the COVID-19 pandemic sparked the acceleration of arbitration’s move online. At the same time, jurisprudence around the FAA has sent various signals that both help and hinder the growth of OArb. Furthermore, the 1925 FAA was not built to address innovations like virtual hearings, creating need for policies that adapt for technological progress. Accordingly, this Article discusses how recent jurisprudence and institutional promulgations may impact OArb, and offers considerations for courts, policymakers and practitioners shepherding OArb development.

Keywords: arbitration, online arbitration, ODR, online dispute resolution, supreme court, online hearings, federal arbitration act, FAA, COVID-19, pandemic