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Toward a New Federal Law on Arbitration$
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Thomas E. Carbonneau

Print publication date: 2014

Print ISBN-13: 9780199965519

Published to Oxford Scholarship Online: December 2014

DOI: 10.1093/acprof:oso/9780199965519.001.0001

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The Possible Rebirth of “Hostility”

The Possible Rebirth of “Hostility”

(p.53) 3 The Possible Rebirth of “Hostility”
Toward a New Federal Law on Arbitration

Thomas E. Carbonneau

Oxford University Press

The Court's decisional law on arbitration is not free of ambivalence. There is a small group of cases in which the Court itself may have engaged in judicial hostility toward arbitration. Wilko v. Swan was the first decision in which the Court questioned the value of arbitration as an adjudicatory methodology. There, it allowed securities regulations to trump arbitral autonomy and depreciated the professional utility of arbitration. Alexander v. Gardner-Denver added civil rights to the list of possible limits on arbitrability, and Commonwealth Coatings required arbitrators to comply with legal standards regarding disclosures. When courts adjudged arbitrators partial, the award became an unenforceable nullity. Thereafter, Volt Information Sciences undermined federalization and Hall Street Associates removed the possibility of party control over vacatur. Finally, Stolt-Nielsen seemed to authorize judicial merits review of awards. Each of these decisions indicated that the Court was reconsidering its favorable position on arbitration.

Keywords:   decisional law, judicial hostility, arbitral autonomy, limits on arbitrability, disclosures, merits review, nullity, federalization, vacatur, legal standards

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