Design Matters: Modernizing the Federal Arbitration Act to Safeguard Party Autonomy

Arbitration is a creature of contract. And it is basic arbitration law that arbitrators must respect contracting parties’ intent. The Federal Arbitration Act’s 100th anniversary offers an ideal moment to reaffirm this principle: arbitrators resolving commercial disputes should honor parties’ intent while preserving arbitration’s core values: efficiency, finality, and autonomy. Unfortunately, routine judicial deference to arbitration decisions often undermines parties’ intent as expressed through party design of the arbitration process.

In response to this issue, this Article proposes amending the Federal Arbitration Act (FAA) to empower courts to safeguard two common arbitral party directives: limits on arbitrators’ remedial authority and choice of law.