Part III Arbitral Proceedings: Establishing the Facts and Applying the Law, A Counterpoise Between Fairness and Efficiency, 1 Arbitration’s Discontents: of Elephants and Pornography

Arbitrators often complain about frivolous motions and excessive requests for documentary discovery. Scholars worry that arbitration allows business managers to evade statutory norms that further vital public policies. Winning claimants complain that judicial review of awards impairs neutrality and finality. Losing litigants grumble that arbitrators apply the law either too strictly or not strictly enough. Discontent aims principally at the abuse of otherwise legitimate procedures, whether in arbitration itself or in related court actions. Arbitrators and judges...