Table of Cases
Subject Index
Introduction
1. The Rise of Arbitration
2. Presumptive Contract Validity
3. The Rule of Federal Law
4. Unobstructed Arbitrability
5. The Imperial Federal Judicial Policy
6. Arbitrator Impartiality and Disclosures
7. The Golden Age
8. Adhesive Arbitration
9. Judicialization
10. The Fate of “Opt-In” Agreements
11. The Action to Clarify Awards and the Imposition
of Sanctions for Specious Litigation
12. Pending Cases
13. A Map of the Book
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
Chapter Two: Basic Concepts, Principles, and Issues
1. Party Autonomy
2. Arbitration Agreements
3. The Terms of Reference
4. Arbitrability
5. The Separability Doctrine and Kompetenz-
Kompetenz
6. Adjudicatory Powers of the Arbitrators
7. Enforcement of Awards
8. Consolidation and Class Actions in Arbitration
9. Fast-Track Arbitration
10. Selecting Arbitrators
11. Expanding the Reach of Arbitration Agreements
12. Waiver of the Right to Arbitrate
13. Multijurisdictional Practice in Arbitration
14. Immunity in Arbitration
15. Arbitral Institutions
16. “Anational” Arbitration: The Lex Loci Arbitri
and the Lex Mercatoria
17. Judicial Supervision of the Merits of Awards
in Anglo-Saxon Laws
18. International Treaties and National Statutes
on Arbitration
19. Contemporary Arbitration Statutes
Chapter Three: The FAA and the Uniform Law
1. The Early “Hostility”
2. The United States Arbitration Act of 1925
3. The Significant Provisions and the Law That
Underlies Them
4. The FAA as a “Super-ADR” Statute
5. The Uniform Law for States
Chapter Four: Resistance
1. The Rise of the Federal Arbitral Policy
2. The Initial Confrontation
3. The Ninth Circuit’s Disposition
4. The Due Process Calculus
5. Illustrative Examples
6. The Engima of Engalla
7. Conclusion
Chapter Five: Arbitration and Federalism
1. Initial Steps toward “Federalization”
2. The Federalism Trilogy
3. The Faux Pas in Volt
4. Affirming the Federalization Policy
Chapter Six: Contract Freedom and Arbitrability
1. The Decisional Edifice on Arbitration
2. Freedom of Contract
3. Mastrobuono
4. Kaplan
5. Freedom of Contract and the Threshold Authority
of the Arbitrator
6. The Demise of “Opt-in” Agreements
7. The Arbitrability of Statutory Claims
Chapter Seven: Conventional Forms of Arbitration
1. Maritime Arbitration: A Private Sector Creation
2. Labor Arbitration: The Privatization of the WorkplaceAdjudication
3. Conclusion
Chapter Eight: Adhesionary Arbitration
1. The Anti-Arbitration Critique
2. The Legislation
3. The “Findings”
4. An Assessment
5. Securities Arbitration
6. The McMahon Opinion
7. The Reversal of Wilko
8. Consumer Arbitration
9. The Early Cases
10. The Rise of Unconscionability
11. The Ruling in Engalla
12. Mutuality in Arbitration
13. Forum Selection Clauses
14. Nursing Homes
15. Class Action Waivers
16. Institutional Rules
17. An Appraisal
18. Employment Arbitration
19. The Judicial Response
20. An Interim Assessment
21. The Arbitrability Schism
22. Uncertainty in the Wake of the Schism
23. The Demise of Gardner-Denver
24. The Factor of Costs
Chapter Nine: The Enforcement of Arbitral Awards
1. Introduction
2. The General Policy for Review
3. The Public Policy Exception to
Enforcement
4. Arbitrary and Capricious or Irrational
Awards
5. Manifest Disregard of the Law
6. Undue Means
7. Excess of Arbitral Authority
8. Arbitrator Misconduct
9. Evident Partiality
10. Sanctions for Frivolous Appeals
11. Opt-In Provisions
12. The Action to Clarify Awards
Chapter Ten: International Commercial Arbitration
1. Introduction
2. An Assessment of the New York Arbitration
Convention
3. The United States Supreme Court on ICA
4. A Brief History
5. ICA in the World Community
6. The Need for Uniformity
7. Impact on National Law
8. Law and Legitimacy in ICA
Conclusion
Table of Cases
Subject Index
"Most works on arbitration deal only with the nuts-and-bolts; others adopt an entirely theoretical approach. Carbonneau's book offers all the perspectives one could want -- historical, analytical, jurisprudential and practical -- all the while viewing arbitration in its full range of substantive contexts. This completeness makes the book invaluable."
--George A. Bermann, Monnet Professor of European Union Law, Columbia University School of Law. Member, Board of Directors, American Arbitration Association (AAA), Reporter, American Law Institute (ALI), Restatement Third, The U.S. Law of International Commercial Arbitration
"This superb tour d'horizon masterfully brings together the disparate elements of arbitration law and practice. A must for every lawyer and law library."
--William W. Park, Professor of Law, Boston University: Of Counsel, Ropes & Gray, Boston; President, London Court of International Arbitration (LCIA)
"A wonderful tool to explore international arbitration issues."
--Emmanuel Gaillard is Chair of Shearman & Sterling's international arbitration practice group. He is acknowledged as one of the world's leading experts on international arbitration. He is a co-author of Fouchard Gaillard Goldman On International Arbitration, the leading and most exhaustive publication in this field. Mr. Gaillard teaches International Arbitration and Private International Law at the University of Paris XII.
"The book is a wonderful blend of case law, commentary, the author's own experience, and theoretical considerations about the nature and role of arbitration. It provides a unique comparative perspective."
--Clark J. Freshman, Professor, University of Miami School of Law
"An excellent book on the topic of arbitration, destined to become a passage oblige for non-U.S. lawyers wishing to know about the law and practice of arbitration in the United States. The discussion on foreign and transnational law will be of great use to anyone interested in international commercial arbitration."
--Frederic Bachand, Professor, McGill University, Faculty of Law; Member, Canadian Commercial Arbitration Centre
"Professor Carbonneau's book is a necessary reference for practitioners and others interested in arbitration. The author conveys an accurate and comprehensive view of the core issues and debates that have emerged in the field. Carbonneau, in fact, supplies one of the most convincing and well articulated accounts of the law of arbitration. He focuses on both the domestic and international dimensions of the arbitral process and provides a persuasive description of their overlap and distinction. The chapte r on international commercial arbitration is the best treatment of the topic I have seen. This volume will set the standard in the field."
--Philip J. McConnaughay, Dean and Donald J. Farage Professor of Law, Penn State University, The Dickinson School of Law; Former Partner, International Arbitration Group, Morrison & Foerster LLP, Tokyo and Hong Kong
