Timing of Institutional Bias Challenges to Arbitration

Abstract

Private, voluntary arbitration is employed widely in the United States.' Arbitration occurs when parties agree adjudicate a dispute before a neutral decisionmaker who is neither a judge nor an administrative official. Parties a dispute can enter into an ad hoc agreement arbitrate once a dispute has arisen, or they can enter into a pre-dispute arbitration agreement in which they agree in advance submit arbitration disputes that may subsequently arise.3 In either case, arbitration agreements are contracts,4 and parties are free agree on whatever procedural and substantive rules they wish have applied toward the resolution of their dispute. This means that parties can either create their own arbitration rules and select their own arbitrators or agree submit their disputes an arbitration organization that has existing procedures and panels of arbitrators. Regardless of the system which parties ultimately agree, they will be bound by the arbitrator's decision.7 Historically, courts were hostile arbitration agreements and often refused enforce them. In 1925, however, Congress enacted the Federal Arbitration Act (FAA)9 to reverse the longstanding judicial hostility arbitration agreements that had existed at English common law and had been adopted by American courts. The FAA treats arbitration agreements as being as enforceable as any other