Challenges for the Future: The Diminishing Role of Consent in Arbitration
Volume 11, Issue #4 of Transnational Dispute Management (August 2014)
4 Yearbook on International Arbitration 19 (2015)
Loyola University Chicago School of Law Research Paper No. 2014-014
9 Pages Posted: 14 Aug 2014 Last revised: 28 Jul 2020
Date Written: August 12, 2014
Abstract
It is a widely-held belief, commonly repeated by courts and commentators, that consent is the foundation of arbitration. Increasingly, however, this is no longer true. One of the challenges for the future is the extent to which consent will continue to constitute the defining core of arbitration. In this article, I will consider first, the lack of consent required in the U.S. court system for consumer and employee claims, as contrasted with the European system where consent still matters with respect to consumer contracts. Next, I will look at recent proposals by commentators suggesting that arbitration should be imposed by default in international commercial contracts that do not include a dispute resolution method. Finally, I will address an area of law where there seems to be a trend to impose arbitration in a mandatory fashion – the arbitration of disputes arising out of trust instruments.
Keywords: arbitration, international
JEL Classification: K33
Suggested Citation: Suggested Citation