In recent decades there has been an explosion of interest in arbitration. The aim of this course is to think deeply about this trend, and in particular about the justifications for arbitration as a method of dispute resolution, its limits, and the principles that govern its practice. We will select topics that allow us to connect the debates over arbitration with larger debates about the function and the forms of law in modern societies.
To illustrate the range of questions we might address, consider the following. Is the increased interest in arbitration a response to perceived defects in the regular court system and if so, what are those defects? More generally, how do arbitration courts and the ordinary judiciary interact? Would arbitration work in a world without courts? What about criticisms of arbitration, such as that it systematically advantages the more powerful party in a contractual relationship? Are there any matters that the state should declare nonarbitrable, and on what grounds? What kind of law are arbitrators supposed to apply in rendering their awards? How does that law relate to the law courts use? How does it relate to broader notions of justice and equity? Is there a role for stare decisis, and should there be? How should arbitrators vote? Should dissents be allowed?
Also, a number of very important and interesting topics arise in special forms of arbitration. For example, under the ICSID system in Washington, an individual is allowed to sue a state in its international capacity before an international arbitral body. Is a strong form of transnational law being created in these cases? Are there any structural biases in such a system? How does the law developed in these cases fit with democratic values?