07 November 2014

Viva Arbitration!

Outside the law school academy, most would not know of the existence of opposition to the growing use of arbitration. Arbitration between parties is generally believed to be quicker and cheaper than litigation. Others suggest that arbitration's real benefit, at least in the world of consumer transactions, is either to keep bad merchant practices under wraps or to steer the disputes to arbitrators who are biased in favor of the sellers of goods and services. Or both.

I have no dog in this fight. There are very good arguments on each side. But there are other reasons parties might agree to arbitrate rather than litigate.

Go here to read Arbitration's Counter-Narrative: The Religious Arbitration Paradigm (download here). About a year and a-half ago I posted with approval another of Michael Helfand's articles. You can read those posts here and here. And I'm pleased to commend this one to my readers' attention.

Cribbing from Michael's abstract:
Arbitration theory and doctrine is dominated by an overarching narrative that conceptualizes arbitration as an alternative to litigation. Litigation, on the one hand, is more procedurally rigorous, but takes longer and costs more; arbitration, on the other hand, is faster and cheaper, but provides fewer procedural safeguards. But notwithstanding these differences, both arbitration and litigation ultimately serve the same purpose: resolving disputes. 
This Article, however, contends that this exclusive focus on arbitration’s standard narrative has left unexplored a competing arbitral narrative — a counter-narrative of sorts — that examines the contexts in which arbitration differs from adjudication because it aims to promote an alternative set of values beyond simply resolving disputes.
This Article considers a paradigmatic example of arbitration’s counter-narrative: religious arbitration. When parties agree to religious forms of arbitration, they select religious authorities to resolve disputes in accordance with religious law. And, as a result, these forms of arbitration are embraced not solely as a utilitarian mechanism to resolve a dispute, but because they enable parties to resolve a dispute in accordance with shared religious principles and values.
In other words, arbitration can serve important non-pecuniary goals such as either the application of religiously-identified rules of law or arbiters who share the religious faith of the parties. Or both.

The Christian organization, Peacemakers Ministries, does precisely what Helfand describes. So too would Catholic courts of canon law and a Jewish bet din. Helfand's article thus serves to inform a wider audience of the non-utilitarian virtues of arbitration.


  1. Michael J. Listner11/07/2014 4:13 PM

    Interesting. There is new body of international arbitration dealing specifically with outer space related disputes, which is sponsored by the Permanent Court of Arbitration. One of the highlights of the Rules is that parties have to come to agreement on who the arbitrators will be before they sit down to present their dispute. They can be found here: http://www.pca-cpa.org/showpage.asp?pag_id=1188

    Still, when it comes to domestic litigation, no amount of arbitration (or mediation) replaces a good motion to dismiss. Why arbitrate if you hold a winning hand in terms of a motion to dismiss.

    1. I appreciate the procedural benefits that litigation offers. The counter point might be whether a Statute of Limitations defense should be used, or if religious principles should also be considered (such as "letting your yes be yes, and your no be no", regardless of the timeline involved).

  2. Since the Indian civil litigation system is so slow, I argued at a meeting of the International Law Society of India back in 2009 that arbitration even for run-of-the-mill domestic matters should be pursued. I was hoping for an offer of co-authorship but since none was forthcoming I let the subject drop.