Three Essays on Arbitration and Adjudication [electronic resource].

9780438907386

Ann Arbor : ProQuest Dissertations & Theses, 2018.

1 online resource (196 p.)

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This series of essays examines how public and private authorities interact in shaping dispute resolution systems and, in particular, the function and regulation (or lack thereof) of arbitration. Each essay discusses how courts have defined arbitrators' roles and the implications of these definitions. In the U.S. and EU systems examined here, arbitrators have limited mandates that flow from the fact that they are appointed by the parties to decide a specific case, while judges in these systems are appointed through public selection procedures. Arbitrators can act as judges do up to a point. At that point, however, the rest of the legal system may not have adapted to the routine use of arbitration. This question of adaptation is also a theme of these essays. The first essay, Too Much Power and Not Enough: Arbitrators Face the Class Dilemma, argues that limits on arbitral power to create precedent are a source of the current divergence among arbitrators over what to do with demands for class arbitration. After a series of Supreme Court decisions limiting the use of class arbitration and allowing defendants contractually to prohibit it, many expected that this form of arbitration would no longer be available. This essay tracks class arbitration decisions from the country's largest provider, the American Arbitration Association (AAA), from the date of the first such decision in 2010 to the end of 2015. AAA class arbitration did not end, but changed significantly. Arbitrators' willingness to find that a contract gives them jurisdiction to allow class arbitration decreased dramatically. Arbitrators new to the system did not interpret contracts to allow class arbitration, while those that allowed it in the past were more likely to allow it after the Supreme Court decisions. Like contracts were not always treated alike. Unlike judges, however, arbitrators cannot write their way out of this situation by creating a general default rule. Their authority is simultaneously too broad and not broad enough. The second essay, Arbitrating Federalism, picks up on this issue of arbitral authority in the context of state attempts to regulate arbitration. State regulation faces two problems. The first is the Supreme Court's expansion of federal preemption and of arbitral power, which leaves state legislatures without the ability to tell state courts to limit arbitration. The second problem comes with a common response to this situation—reforms that seek to make arbitration more closely resemble judging. Common reforms that have been proposed or adopted at the state level include conflict-of-interest rules for arbitrators, default process rules, and publication requirements. These proposals are all designed to bring arbitration in line with the processes and outcomes one might expect from a state court. Yet arbitrators lack the authority that judges have to develop the law, creating a further due process problem for parties who expect to be operating in a common law system. Accommodating arbitration may mean moving further from a model of common law adjudication. The final essay, Arbitration and the EU Balance, looks at how arbitration affects vertical divisions of power not in the United States, but in the European Union. Under the Treaty on the Functioning of the European Union (TFEU), member state courts are either allowed or required to refer questions of EU law to the Court of Justice for the European Union (CJEU) for decision. Referral is the vehicle through which the CJEU maintains the primacy, unity, and autonomy of EU law. The CJEU has alternately relied on the contractual nature of arbitration to refuse referral and a member state's choice to substitute arbitration for court to accept it. Intra-EU bilateral investment treaty (BIT) arbitration was harder to classify. The court did not agree that such arbitration was not a threat to EU law because of the arbitration's private, contractual nature. It also did not consider an investment tribunal to be a court of a member state. The court thus rejected referral and refused to enforce the arbitral award. As the European Commission continues to endorse arbitration in a range of scenarios, the CJEU will face more hard cases. Rejecting enforcement in most such cases is unlikely to be realistic. However, allowing referral under the TFEU or through some other means would mean ceding some agenda-setting power to entities that are not part of a member-state government. A better, if politically difficult alternative, is for the Union and member states to require review of arbitral awards for violations of EU public policy, which entails fewer changes to the EU judicial hierarchy.

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August 21, 2019

Thesis (Ph.D.)--Yale University, 2018.

Yale University.