The Culture of American Arbitration and the Lessons of ADR
Alan Scott Rau
University of Texas at Austin - School of Law; University of Texas at Austin - The Kay Bailey Hutchison Center for Energy, Law & Business
Texas International Law Journal, 2005
Rather than rehearse once again the cheerful tale of harmonization, or convergence, or globalization in the practice of international arbitration, this article tells a different story, one of particularity and divergence. It calls attention to certain distinctive features of our understanding of arbitration, which I identify as
- contractual - involving the freedom of contracting parties to alter the face of the arbitration process;
- expansionist, or at least elastic - meaning that the gravitational force of arbitration has tended to sweep up all sorts of other alternative dispute resolution mechanisms, causing them to benefit from the legitimacy, and statutory protection, accorded the arbitration process; and
- alegal - involving a recognition that despite the red herring of such notions as the manifest disregard of the law, we do not suppose that the arbitration process presupposes a decisionmaker who acts by formulating, applying, and communicating general principles of decisions, or rules.
All of these distinctive features of the American culture of arbitration, I suggest, are interconnected - and all are rooted in an instrumentalist legal culture that shares these same characteristics, which pays little attention to definitional niceties and to historical archetypes, and which has itself as a consequence been congenial to experimentation with other alternative dispute resolution mechanisms.
Number of Pages in PDF File: 126
Keywords: Arbitration, ADR
Date posted: May 13, 2005