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

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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