Originally from: The Law and Practice of Arbitration - 4th Edition - Hardcover
The Law and Practice of Arbitration - 4th Edition - Electronic
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Chapter One: Arbitration Defined
1. Introduction
Arbitration is a private and generally informal trial procedure
for the adjudication of disputes.1 It is an extrajudicial process. It
functions as an alternative to conventional litigation. It yields binding
determinations through less expensive, more efficient, expert, and fair
proceedings. Although it can engender settlements, arbitration is not a
means of achieving dispute resolution through party agreement.
Arbitration is neither negotiation nor mediation.2 By agreeing to
arbitrate, the parties confer full legal authority on the arbitrators to
adjudicate their disputes, i.e., to render a final disposition on the
matters submitted that can be enforced through coercive legal means.
Party agreement sets the process in motion, but it does not dictate
(necessarily) the procedure nor (certainly) the outcome. Once the
parties entrust the arbitral tribunal with the authority to rule, they--
subject to a possible intervening settlement--relinquish control of the
proceedings, the dispute, and its resolution to the arbitrators and--to a
lesser extent--the administering arbitral institution.
The recourse to arbitration is ordinarily consensual. Despite
their unilateral character, adhesive contracts for arbitration are valid
and enforceable3--unless a court determines the provision to be
unconscionable. In their agreement, the parties agree to submit
existing or prospective disputes to arbitration. The agreement to
arbitrate is the centerpiece of the process--both in terms of legal
doctrine and from a practical vantage point. The parties have the
freedom--the legal right--to engage in arbitration and to make
specific provisions for the implementation and operation of their
arbitration. By entering into an arbitration contract, the parties
voluntarily abandon their right to judicial relief and, in effect, create
a private system of adjudication that presumably is better adapted to
their transactional needs
Chapter One: Arbitration Defined
1. Introduction
2. The Commercial Appeal
3. The Promise of Arbitration
4. How the Arbitral Trial Works
5. The Basic Mechanism
6. The Political Character of Arbitration
7. Reforming the FAA
8. Arbitration and ADR
9. The Law at a Glance
10. Arbitration and the Practice of Law
11. Conclusion
Thomas E. Carbonneau is the Samuel P. Orlando Distinguished Professor of Law at Penn State's Dickinson School of Law. Professor Carbonneau is commonly regarded as one of the world’s leading experts on domestic and international arbitration. He serves on the editorial board of La Revue de L'Arbitrage and is the author of ten highly acclaimed books and 75 scholarly and professional articles on arbitration. Professor Carbonneau and was formerly the Moise S. Steeg Jr. Professor of International Law at Tulane University School of Law.
