Consideration of 'Contracting Culture' in Enforcing Arbitration Provisions

St. John's Law Review, Vol. 81, pp. 123-172, 2007

U of Colorado Law Legal Studies Research Paper No. 08-25

51 Pages Posted: 21 Sep 2008

See all articles by Amy J. Schmitz

Amy J. Schmitz

Ohio State University (OSU) - Michael E. Moritz College of Law; Cyberjustice Lab

Date Written: September 19, 2008

Abstract

The Federal Arbitration Act mandates strict and uniform enforcement of standardized pre-dispute arbitration provisions. This may not be proper, however, in light of the importance of context with respect to these provisions. This Article therefore seeks to remind courts of the importance of exchange context by proposing a "contracting culture" continuum for enforcing these arbitration provisions that acknowledges the impacts of these provisions in a particular communal context. "Contracting culture" encompasses economic and non-economic relational factors that impact dispute resolution agreements, but go beyond common conceptions of "culture" focused on ethnicity, nationality, or religion. It also explores beyond the primary domestic versus international factors and spans contracting cultures ranging from "intra communal" to "extra communal" in order to highlight how parties' relations, understandings, and values may have the greatest impact on the fairness of form arbitration provisions.

Keywords: contract, consumer, dispute resolution, consumer law, commercial law, arbitration, pre-dispute arbitration provisions, form arbitration provisions, Federal Arbitration Act, contracting culture, fairness

JEL Classification: K12, K41

Suggested Citation

Schmitz, Amy J., Consideration of 'Contracting Culture' in Enforcing Arbitration Provisions (September 19, 2008). St. John's Law Review, Vol. 81, pp. 123-172, 2007, U of Colorado Law Legal Studies Research Paper No. 08-25, Available at SSRN: https://ssrn.com/abstract=1270865

Amy J. Schmitz (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

Cyberjustice Lab ( email )

Montreal
Canada

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