Arbitration and the Batson Principle
96 Pages Posted: 26 Apr 2004 Last revised: 21 Aug 2015
Date Written: 2004
As disputants more frequently utilize arbitration to resolve disputes, the likelihood that discriminatory arbitrator selection will occur also increases. While some disputants might consent to selecting an arbitrator for particular reasons, it is troublesome to think that repeat players, such as employers and businesses, might use their greater knowledge and experience with the arbitral process to gain control over the arbitrator selection process through the use of peremptory challenges. Opponents of arbitration have attempted to adopt existing legal arguments to address this problem. Unfortunately, however, neither the state action doctrine nor the use of the existing public policy exception to the enforcement of an arbitration agreement or arbitral award will be successful as a means to challenge the use of discriminatory peremptory strikes. Because existing legal arguments fail to address this growing problem, this Article proposes an amendment to the Federal and Uniform Arbitration Acts to address the problem of discriminatory arbitrator selection. The proposed statute, which would ban discrimination in the selection of an arbitrator on the basis of race, ethnicity, national origin, sex, religion, or sexual orientation, mirrors the classifications that the Batson principle encompasses and thus is justifiable for both practical and constitutional reasons.
Keywords: Batson, arbitration, arbitrator, discrimination, state action
JEL Classification: J52, K41
Suggested Citation: Suggested Citation