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Thursday, April 25, 2019

American Arbitration Association Contrasted with Trade Association Arbitration

Commercial arbitration's different types -- such as the contrast between the AAA and trade associations -- are discussed in my recent article: Stephen J. Ware, Private Ordering and Commercial Arbitration: Lasting Lessons from Mentschikoff, 2019 J. Disp. Resol. (2019).

It revisits the classic work of Soia Mentschikoff who detailed a
thoroughgoing form of private ordering in trade association arbitration that
privatizes all three of:

(1) lawmaking (through arbitrators applying industry trade rules rather than
governmental law, and through the precedential effect of arbitrators’ reasoned
awards);
(2) adjudication (through arbitration procedures quite different from courts’
rules of procedure and evidence); and
(3) enforcement of the adjudicator’s decision (through private sanctions
culminating in expulsion from the association).

By contrast, she shows that the general commercial arbitration typical of the
AAA often includes only the second of these three forms of privatization.

A summary from Beth Graham at DisputingBlog.

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