By Hans Smit. 113 Penn St. L. Rev. 995.
In the beginning, arbitration was straight forward. Once a dispute had arisen, the parties agreed to submit it for resolution to a third party. The courts stayed out of the process. They did not even enforce the agreement to arbitrate. But they did enforce the arbitrator’s decision.
The next step was to enforce the agreement to arbitrate. The courts were not enthusiastic about enforcing a substitute for their exclusive prerogative. The legislature had to push it, one might say, down their throats.
And then the Supreme Court went even further and ruled that, if the arbitration agreement so provided, the arbitrators were the ones to determine whether the dispute was arbitrable . . . [keep reading]