The Fallacy of Consent: Should Arbitration Be a Creature of Contract?

Authors

Fabio Núñez del Prado

Abstract

Arbitration is a creature of contract. This paradigm is so basic that it is accepted in all the States of the world. Nevertheless, arbitration is perceived as the most suitable method for the settlement of commercial disputes. Virtually all commercial disputes are resolved through arbitration. The natural order of things has been reversed. In commercial matters, at least, arbitration is the rule, and courts the exception. Why is it, then, that parties must opt in for a solution which appears as the most natural one in the community? I propose to question this default rule and propose an extreme shift: Arbitration should become the default jurisdiction.

Recommended Citation

Fabio Núñez del Prado, The Fallacy of Consent: Should Arbitration Be a Creature of Contract?, 35 Emory Int'l L. Rev. 219 (2021).
Available at: https://scholarlycommons.law.emory.edu/eilr/vol35/iss2/2