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51 Rutgers L. Rev. 369 (1998-1999)
Decision by Division: The Contractarian Structure of Commercial Arbitration

handle is hein.journals/rutlr51 and id is 381 raw text is: DECISION BY DIVISION: THE CONTRACTARIAN STRUCTURE OF COMMERCIAL ARBITRATION Steven Walt* In commercial arbitration, two decision makers, the arbitrator and the court, have authority over different aspects of the arbitrated dispute. The distribution of decision making, while not inevitable, is a persistent and prevalent part of the law of domestic and interna- tional commercial arbitration. Professor Walt's article analyzes this allocation. Professor Walt criticizes contractual and regulatory accounts as unable to explain or justify it. He defends a contractarian analysis, based on the distri- bution of decision making as a choice of a specified group under specified conditions of choice. In doing so Professor Walt justifies each of four decision-making allocations recognized in commercial arbitration. He then uses the contractarian approach described to evaluate a sample of court decisions. TABLE OF CONTENTS Introduction ........................................ 370 I. Decisional Allocations in Commercial Arbitration .................................. 374 A. Competence-Competence and the Existence Issue ...................................... 375 B. Competence-Competence and the Scope Issue ....... 379 C. The Doctrine of Separability and the Contract Issue ...................................... 381 D. The Review Issue ............................. 384 II. The Defects of Contractual and Regulatory Approaches ................................. 385 * Professor of Law, University of Virginia School of Law. I thank Clayton Gillette, Jack Goldsmith, John Jeffries, Jody Kraus, Saul Levmore, William W. Park, George Triantis, Amy Wax, and participants in the University of Virginia Legal Theory Workshop for comments or discussion on earlier drafts of this paper. The usual disclaimer applies.

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