Lasting Lessons from Mentschikoff’s Commercial Arbitration

Abstract

Soia Mentschikoff’s seminal 1961 article, Commercial Arbitration, includes lasting insights about commercial arbitration, commercial law, and even about commerce. Key to these insights is Mentschikoff’s empirical study of trade association arbitration and her comparison of such industry-specific arbitration with the more general commercial arbitration exemplified by the American Arbitration Association. This comparison shows arbitration’s ability—especially in the “core commercial” context of trade associations—to privatize substantive law, adjudication procedure, and even enforcement of the adjudicator’s decision. Mentschikoff thus leads us from the humble context of routine sales disputes to grand questions about the roles of private parties and governments in the production, application, and enforcement of law....