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 lament 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 pro-cedures, whether in arbitration itself or in related court actions. Arbitrators and judges are increasingly aware of the need to discourage litigants from frustrating the basic aims of business arbitration: dispute resolution that is both relatively efficient and reasonably free from excessive judicial intervention. Although these aspirations do not lend themselves to facile analysis, they can help frame a dialogue that promotes reasonable choices about acceptable tactics, with sensitivity to the inevitable cultural predispositions existing in today’s international commercial community.