Section 1: Defining Arbitration and Addressing Structural Bias

Authors

Nancy A. Welsh, Texas A&M University School of LawFollow

Document Type

Book Section

Publication Date

12-2024

ISBN

9781009391917

DOI

10.1017/9781009391894.006

Abstract

The Supreme Court’s jurisprudence pursuant to the Federal Arbitration Act (FAA) has successfully encouraged the use of arbitration to resolve disputes of all types, including those arising out of contracts of adhesion. Meanwhile, with one very limited exception, neither Congress nor the Supreme Court has done anything to assure those bound by adhesive contracts that the required arbitration process will be fair, impartial, and consistent with due process principles. The FAA does not even include a definition of arbitration to guide arbitration providers and individual arbitrators. This chapter proposes the addition of a definition of arbitration to the FAA to make it clear that: (1) arbitration is a decision-making process involving binding adjudication by a third party; (2) arbitration must meet the requirements of due process, including but not limited to an impartial arbitrator; and (3) arbitration providers must have a mechanism in place to assure sufficient due process and impartiality. In the adhesive contract context, this last requirement would help ensure that judicial enforcement of arbitration clauses and arbitral awards is conditioned on a sufficient showing of the safeguards put into place to protect structural bias – which should then both justify requests for discovery on this issue and incentivize arbitration providers’ establishment of the needed structural and procedural safeguards.

First Page

35

Last Page

47

Num Pages

13

Publisher

Cambridge University Press

Rights

Reproduced with permission. Original chapter available at https://doi.org/10.1017/9781009391894.006

Editor

Richard A. Bales & Jill I. Gross

Book Title

The Federal Arbitration Act: Successes, Failures, and a Roadmap for Reform

Recommended Citation

Nancy A. Welsh, Section 1: Defining Arbitration and Addressing Structural Bias, in The Federal Arbitration Act: Successes, Failures, and a Roadmap for Reform 35 (Richard A. Bales & Jill I. Gross eds., 2024).
Available at: https://scholarship.law.tamu.edu/facscholar/2174

File Type

PDF