Arbitration has been used as a dispute-resolution tool for thousands of years. It has deep roots across a variety of settings, particularly in international and commercial contexts, and counts among its proponents luminaries from King Solomon and George Washington to Rodger Goodell. For much of its history, arbitration existed in an uneasy tension alongside courts of law, which were generally slow to embrace—and sometimes outwardly hostile to—the concept of private-party dispute resolution. However, beginning in the early 20th century, countries around the world started to embrace arbitration, enacting laws requiring their courts to enforce arbitration agreements and severely circumscribing judicial review of arbitrators’ awards. Over the past 100 years, a strong proarbitration policy has emerged, and arbitration has become prevalent in commercial, consumer, and even professional sports disputes—although some would argue that arbitration has come to resemble traditional litigation, losing some of the time and cost savings that make it appealing to its proponents. This article explores these trends and provides a high-level overview of how the “law of arbitration” came to exist in its modern form.
Roots/History of Arbitration
Arbitration is not a modern tool employed to avoid certain disadvantages associated with contemporary litigation; rather, arbitration can be traced through history as a preferred method of dispute resolution in even primitive societies. As set forth below, many legal fields that favor arbitration today—family, property, commercial transactions, trusts and estates, and labor—have ancient arbitration roots.
Family law. One of arbitration’s earliest family law examples is King Solomon’s famous judgment in the Old Testament. Most are familiar with the facts: Faced with two mothers each claiming a child as her own, King Solomon asked for a sword to split the child in half. One woman protested that she would rather the other woman raise the living child, while the second woman preferred the sword so that neither woman could raise the child. King Solomon’s judgment was to give the child to the woman who was concerned for the child’s best interest and would rather the child live with another than be divided.1 Greek mythology references arbitration, too: when Juno, Pallas Athene, and Venus disputed who was the most beautiful, the parties agreed to name Paris, the royal shepherd, as arbitrator when all other methods of dispute resolution had failed.2
Property law. In the property context, Philip II of Macedonia, father of Alexander the Great, often used arbitration in Ancient Greece to resolve territorial disputes stemming from a peace treaty.3
Commercial transactions. The use of arbitration to resolve disputes arising out of commercial transactions spans many nations and ancient peoples. Merchants traveled to different towns and fairs and needed expedited decisions on commercial and contractual disputes. Arbitration was used to resolve early commercial disputes in Marco Polo’s desert caravans, as well as between Greek and Phoenician traders.4 In the Middle Ages of England, merchant disputes were viewed as better suited to arbitral tribunals than to the royal courts; indeed, arbitration agreements in commercial contracts appeared as early as 1224.5 The royal courts were focused more on land disputes than on the issues that arose between merchants in financing commercial transactions.6
Trusts and estates. Arbitration has long been used in estate management as well. Upon George Washington’s death on December 14, 1799 (well before the American Arbitration Association implemented the Wills and Trusts Arbitration Rules and Mediation Procedures), it was revealed that Washington had included an arbitration clause in his will:
But having endeavoured to be plain, and explicit in all Devises—even at the expence of prolixity, perhaps of tautology, I hope, and trust, that no disputes will arise concerning them; but if, contrary to expectation, the case should be otherwise from the want of legal expression, or the usual technical terms, or because too much or too little has been said on any of the Devises to be consonant with law, My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants—each having the choice of one—and the third by those two. Which three men thus chosen, shall, unfettered by Law, or legal constructions, declare their sense of the Testator’s intention; and such decision is, to all intents and purposes to be as binding on the Parties as if it had been given in the Supreme Court of the United States.7
Clearly, Washington foresaw the benefits of avoiding expense and expediting the probate of wills in the realm of estate management.
Labor law. Early on, the American labor industry embraced the use of arbitration as a dispute-resolution framework. Even before the Industrial Revolution, American laborers were familiar with arbitration to resolve disputes related to wages and working conditions. For example, the Chamber of Commerce of New York used arbitration in 1786 to resolve a dispute related to the wages of seamen.8 And the Bureau of Labor Statistics reported arbitration of disputes in the late 1800s involving iron puddlers in Pittsburgh; shoe workers in Massachusetts; and bricklayers in New York, Boston, and Chicago.9
The Industrial Revolution transformed the labor market and increased the use of collective bargaining agreements as a way for workers to ensure fair pay and proper working conditions. In 1935, Congress enacted the National Labor Relations Act (NLRA) to protect the rights of employers and employees and to encourage collective bargaining.10 This, in turn, led to the continued development and expansion of arbitration. For example, in negotiating the terms of a collective bargaining agreement, parties often turn to “interest arbitration” when an impasse arises and risks preventing a final agreement on the specific terms of the contract.11 A well-known example of interest arbitration is negotiation of salary caps in professional sports.12 Another form of arbitration, “grievance arbitration,” relates to disputes over the specific terms of the contract after it has been agreed upon.
Judicial Attitudes Toward Arbitration
As reflected above, the concept of arbitration has been around since ancient times. However, as formal courts of law began to develop, a perhaps uneasy tension resulted among courts, legislators, and arbitration, as evidenced in some early reported decisions from England and France. Interestingly, some observers have remarked that while arbitration as an institution precedes formal courts of law, arbitration immediately assumed a “back-seat” role upon the appearance of formal courts of law, subject to perhaps unwarranted oversight by the courts and viewed by many courts as lacking legitimacy.13 (One notable exception is in the international trade context, which is discussed in the next section.)
England. English law has long recognized the use of arbitration as a dispute-resolution mechanism, permitting the issuance of penal bonds to ensure compliance with arbitration agreements and adherence to decisions of arbitrators.14
Nonetheless, some jurists viewed arbitration agreements as revocable by either party,15 and English courts throughout the 19th century and a good part of the 20th century generally were hesitant to embrace arbitration agreements, perhaps for fear they would “oust” the jurisdiction of the courts.16 The English courts therefore would not order specific performance of arbitration agreements, instead imposing relatively nominal penalties for breach of the agreement to arbitrate and then proceeding to judicial review of the claim on the merits.
France. As early as 1790, the Constituent Assembly called arbitration “the most reasonable method for terminating disputes between citizens.”17 Indeed, the French Civil Code had provisions recognizing and enforcing arbitration provisions in international trade disputes as long as certain safeguards prescribed by the legislature were practiced.18
French jurisprudence, noted one commentator, was particularly important in developing consistency with respect to arbitration on the international level.19 However, although France was quick to embrace arbitration on an international level, it was slower in the domestic context.20
United States before the FAA. In the United States, the use of arbitration predates colonization, with Native Americans relying on arbitration to settle disputes within and between tribes.21
As early as 1632, the Commonwealth of Massachusetts passed laws in support of arbitration. In one dispute, the wife of a prominent Boston resident used arbitration to resolve a privatecommercial dispute. Mrs. Hibbenscontracted with Mr. Crabtree to perform carpentry services on her home, but they could not agreeon a price. They arbitrated thedispute, each choosing a qualifiedarbitrator—another carpenter. The carpenter arbitrators awarded a revised fee, but Mrs. Hibbens refused to pay even after a second arbitration. Eventually, the church reverend presided over the final hearing.22
However, while arbitration may have been recognized during the early history of the United States, it was not preferred. Prior to the enactment of the Federal Arbitration Act (FAA) (discussed in the next subsection), arbitrators’ statutory authority to resolve a dispute often was limited to specific contexts, such as bankruptcy and admiralty.23 Generally, American courts adopted the English common-law approach, refusing to order specific performance of agreements to arbitrate and instead awarding only nominal damagesfor a party’s breach of such an agreement.24
United States after the FAA. The FAA was enacted in 1925 to alter the judicial climate. As the legislative history quoted by the U.S. Court of Appeals for the Second Circuit in Kulukundis Shipping Co., S.A. v. Amtorg Trading Corp. reflects,
the effect of the bill is simply to make the contracting party live up to his agreement. . . . An arbitration agreement is placed on the same footing as other contracts, where it belongs.25
That legislative history specifically noted English hostility to arbitration agreements—referring to it as “jealousy” due to England’s concern over having its jurisdiction ousted—and expressed the desire to reject that view, which had been adopted at common law by American courts.26
The FAA recognized, and perhaps attempted to bridge, the foregoing disconnect. The act gave a nod to the binding nature of arbitration by requiring federal courts to refer parties to arbitration upon presentation of an agreement to arbitrate, and requiring courts to confirm and enforce those awards as judgments as long as they were not tainted by some narrow set of irregularities.
As jurisprudence interpreting the act developed, it became clear that arbitrators were vested with significant power—to determine whether a dispute fell within their jurisdiction to arbitrate, whether the contract at issue containing the arbitration agreement was even valid, and so on. Courts repeatedly have held unenforceable state laws undermining the broad scope of the powers granted under the FAA. The use of arbitration as a broad dispute-resolution mechanism became more and more prevalent as a result.
Far from declining to enforce arbitration agreements voluntarily entered into between parties as was the case a mere 100 years ago, courts today now find that even nonparties to agreements may be required to arbitrate under an estoppel theory.27 This is not uncommon in the surety context as sureties have been required to arbitrate where the surety bond in dispute incorporates an underlying contract that requires arbitration.28
The Rise of Institutional Arbitration
The enactment of the FAA undoubtedly led to an increase in the sheer number of arbitrations as the reliability of agreements to arbitrate, and the ability to rely upon courts to enforce awards stemming from those agreements, gave contracting parties more confidence in the system.29 As set forth below, this confidence was further increased by the so-called institutionalization of arbitration, whereby private entities promulgated rules, regulations, and procedures that parties could rely upon to further standardize the process.
American Arbitration Association and model rules. One of the benefits of arbitration obviously is the parties’ ability to choose the parameters that will apply to resolve their disputes. In some respects, this likely proved easier said than done as parties lacked the time and motivation to specify in detail the various rules that would govern theoretical disputes that could arise.
Accordingly, around the same time that the FAA was passed, the American Arbitration Association (AAA) was formed via the consolidation of three smaller arbitration societies. Drawing from the collective knowledge of participating legislators, practitioners, jurists, academics, and industry leaders, sets of model rules were created that, via simple incorporation by reference in the applicable agreement to arbitrate, could provide a principled mechanism for resolving parties’ disputes. By 1931, the AAA had published its first Code of Arbitration Practice and Procedure.30
The AAA model also administered arbitrations, providing parties with easier access to qualified, neutral arbitrators who had experience administering the AAA’s rules. By 1966, the AAA alone administered approximately 13,000 cases per year.31
By 1979, the demand for such institutional models had continued to rise to the point that two other institutions—Judicial Arbitration and Mediation Services (now known simply as JAMS) and Conflict Prevention and Resolution (CPR)—were also formed.32 As with the AAA, both of these entities promulgate their own sets of rules and procedures, and JAMS actually employs a network of full-time neutrals to resolve disputes, both nationally and internationally.
As the demand for arbitrators grew, subspecialties developed. For example, the National Association of Securities Dealers (NASD) and New York Stock Exchange (NYSE) each created its own framework for administering disputes in the securities industry. When these two agencies merged to create the Financial Industry Regulatory Authority (FINRA), that entity became the largest dispute-resolution forum in the securities industry field. With the U.S. Supreme Court’s blessing in Shearson v. MacMahon, nearly all disputes (with the notable exception of securities class actions) involving brokerage firms now are resolved in arbitration.33
Application to the labor context. The labor industry’s continued reliance on arbitration has contributed significantly to what arbitration has become today.
The use of arbitration in both the formation of contracts (i.e., collective bargaining agreements) and in the enforcement of those same contracts led to a steep increase in labor cases heard by the AAA and other arbitrators. By 1944, the Bureau of Labor Statistics reported that 75 percent of collective bargaining agreements designated arbitration as the “terminal point” in their grievance-resolution framework.34 By 1988, labor cases comprised nearly two-thirds of the AAA’s caseload.35
Recently, arbitration in the labor industry was the subject of a high-profile court battle. The Supreme Court addressed an employer’s right to compel employees to resolve employment-related claims through individual arbitration proceedings.36 For many years, the National Labor Relations Board respected such agreements but changed its position in 2012, finding that such agreements impinged on employees’ class/collective action rights. The Supreme Court resolved the issue in May 2018, with Justice Gorsuch writing a 5-4 decision concluding that “Congress has instructed that arbitration agreements [providing for individualized proceedings] must be enforced as written”37 and that neither the NLRA’s references to collective bargaining nor the FAA required an exception to this rule.
Application to the surety context. The evolution and prominence of institutionalized arbitration also has reached surety companies in the payment and performance bond context. Sureties often are bound to arbitration because owners, architects, contractors, and subcontractors frequently use the American Institute for Architects (AIA) forms as the basis for the construction contract; specifically, AIA Document A201TM, “General Conditions of the Contract for Construction,” is incorporated regularly into the construction contract. Both the 2007 and revised 2017 versions of this form include arbitration clauses naming the AAA as the forum for arbitration, which will be governed by the AAA’s Construction Industry Arbitration Rules in effect on the date of the agreement.38
International application. International arbitrations have developed similar institutions. In 1958, the United States passed the New York Convention, which not only recognizes and requires the enforcement of agreements to arbitrate entered into between citizens of foreign nations that are signatories to the convention but also provides a mechanism for recognizing and enforcing awards made by tribunals in those countries.
Moreover, in 1976, the United Nations (UN) Commission on International Trade Law (UNCITRAL) adopted model rules applicable to international commercial arbitrations. These rules, known as the UNCITRAL Rules, were developed specifically to apply internationally and are tailored to meet the needs of the UN’s various member states:
[T]he establishment of rules for ad hoc arbitration that are acceptable in countries with different legal, social and economic systems would contribute to the development of harmonious international economic relations.39
Arbitration Pitfalls: Elusive Goals?
The obvious benefits of arbitration are its finality and promotion of expeditious, and less expensive, decisions. The early presumption was that parties to an arbitration agreement would be willing to trade in some of the safeguards afforded by the courts in exchange for these considerations.40
Some may question whether these goals still are met in the arbitration context, or whether arbitration simply has become another, perhaps more expensive, form of traditional litigation. As one practitioner remarked,
[w]hat started as a relatively swift and economical process for a . . . claimant to seek justice has evolved into a costly extended adversarial proceeding dominated by trial lawyers and the usual litigation tactics.41
Some of the most visible examples of this paradigm shift are found in professional sports disputes, which generally involve challenges to discipline meted out to individual players and, on occasion, teams. These disputes and subsequent judicial challenges involve dozens of lawyers from preeminent firms and routinely stretch far beyond the length of the suspension or other penalty being appealed.
One of the most recent and widely publicized examples of this was Tom Brady’s Second Circuit appeal of National Football League (NFL) Commissioner Roger Goodell’s decision to impose on Brady a four-game suspension after the so-called Deflategate incident. Acting pursuant to the NFL’s collective bargaining agreement, Goodell not only investigated and imposed the initial discipline but also served as the arbitrator of that initial decision. Brady challenged this process in the U.S. District Court for the Southern District of New York and succeeded in convincing that court to overturn his suspension. The NFL appealed the district court’s decision. The Second Circuit reversed the district court’s decision. The appellate court’s opinion emphasized the very narrow scope of review and the court’s consequent inability, and unwillingness, to wade into the merits of the dispute; therefore, the court focused almost solely on the procedure that was followed, i.e., whether the NFL and Goodell followed the terms of the league’s collective bargaining agreement. After answering this question in the affirmative, the court reversed the district court, reinstated the suspension, and denied Brady’s request for a 13-judge en banc appellate rehearing of the decision.42
Even smaller disputes are trending more toward the standard courtroom model. By way of example, the AAA rules permit extensive discovery where the parties agree or the arbitrator otherwise orders. Likewise, UNCITRAL Rules were updated in 2010 to reflect modern challenges like multiparty practice and expert discovery.
More discovery equates to more legal fees, and the involvement of experts can cause these costs to increase exponentially. Beyond that, arbitrators of the caliber required to resolve many technical or high-dollar disputes do not come cheap; and, indeed, where a three-arbitrator panel is chosen (or required—for example, FINRA rules mandate three arbitrators in certain scenarios, as do AAA rules), the arbitrator costs alone easily can creep into six figures. Against this backdrop, one cannot help but wonder if some of the advantages originally intended by the arbitration framework are becoming illusory.
Arbitration as an institution now has widespread support from most governments and court systems, and its use as a dispute-resolution mechanism has increased accordingly. Furthermore, because arbitration allows the parties the freedom to determine how their disputes will be resolved, specialized, industry-specific institutions have emerged. Interestingly, however, in some settings arbitrations arguably have taken on some of the same characteristics as the traditional judicial proceedings that they originally were intended to avoid.
1. Frank D. Emerson, History of Arbitration Practice and Law, 19 Clev. St. L. Rev. 155, 155–56 (1970).
2. Id. at 156.
3. Richard Bales, Compulsory Arbitration: The Grand Experiment in Employment 5 (Cornell University Press 1997).
4. Emerson, supra note 1, at 156.
5. Marvin F. Hill Jr. & Anthony V. Sinicropi, Improving the Arbitration Process: A Primer for Advocates, 27 Willamette L. Rev. 463, 465 (1991).
6. Kyriaki Noussia, Confidentiality in International Commercial Arbitration 11 (Springer-Verlag Berlin Heidelberg 2010).
7. George Washington, The Will of George Washington (Mount Vernon, July 9, 1799) (emphasis added), available at https://trans-lex.org/files/george-washington-will.pdf.
8. Emerson, supra note 1, at 156.
9. E. L. Oliver, The Arbitration of Labor Disputes, U. Pa. L. Rev. 206, 213 (Dec. 1934).
10. National Labor Relations Board, www.nlrb.gov/resources/national-labor-relations-act (last visited May 4, 2019).
11. Barry Winograd, An Introduction to the History of Interest Arbitration in the United States, Labor L.J. 164, 165 (Fall 2010).
13. Tibor Varady, The Standing of Arbitration Within the Legal System, in Law and Reality: Essays on National and International Procedural Law 351–52 (Sumampouw et al. eds., 1995).
14. See Kulukundis Shipping Co., S.A. v. Amtorg Trading Corp., 126 F.2d 978 (2d Cir. 1942); see also Tibor Varady et al., International Commercial Arbitration 50 (3d ed. 2006).
15. See Kulukundis, 126 F.2d at 982 (citing Vynior’s Case,  77 Eng. Rep. 597 (KB) (spelling of case name per original image of case)).
16. See id. at 983; see also Arthur Taylor von Mehren, A General View of Contract, in 7 International Encyclopedia of Comparative Law 52–56 (1982).
17. von Mehren, supra note 16.
18. L’Alliance v. Prunier, Cour de cassation [Cass.], Chambre civile, July 10, 1843.
19. Arthur Taylor von Mehren, International Commercial Arbitration: The Contribution of the French Jurisprudence, 46 La. L. Rev. 1045 (1986).
20. von Mehren, supra note 16, at 53.
21. Liliana Burnett, The Current State of Arbitration Clauses Within Native American Tribal Contracts: An Examination of Binding Arbitration Contracts in Native American Payday Lending, 4 Arb. Brief 142, 144 (2014).
23. Varady et al., supra note 14, at 50 n.28, 56.
24. See Kulukundis Shipping Co., S.A. v. Amtorg Trading Corp., 126 F.2d 978, 984 (2d Cir. 1942).
25. Id. at 985.
27. See, e.g., Sokol Holdings, Inc. v. BMB Munai, Inc., 542 F.3d 354 (2d Cir. 2008).
28. See, e.g., St. Paul Fire & Marine Ins. Co. v. Wooley, 545 So. 2d 958 (Fla. Dist. Ct. App. 1989).
29. See von Mehren, supra note 16, at 56.
32. David McLean, US Arbital Institutions and Their Rules, LexisNexis, www.lw.com/thoughtLeadership/us-arbitral-institutions-and-their-rules (last visited May 1, 2019).
33. 482 U.S. 220 (1987).
34. See History of the AAA and Alternative Dispute Resolution, supra note 30.
36. Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018).
37. Id. at 1632.
38. A201TM – 2017 Compared to A201TM – 2007, AIA 35 (2017), available at http://aiad8.prod.acquia-sites.com/sites/default/files/2017-08/A201%202017%20Comparative%20and%20A101%20Exhibit%20New.pdf.
39. G.A. Res. 31/98 (United Nations Comm’n on Int’l Trade Law (UNCITRAL), Arbitration Rules), available at www.uncitral.org/pdf/english/texts/arbitration/arb-rules/arb-rules.pdf.
40. Am. Almond Prods. Co. v. Consol. Pecan Sales Co., 144 F.2d 448, 450 (2d Cir. 1944).
41. Gretchen Morrison, Is This Game Already Over?, N.Y. Times (June 18, 2006), www.nytimes.com/2006/06/18/business/yourmoney/18arb.html?_r=1&oref=slogin.
42. Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 820 F.3d 527 (2d Cir. 2016).