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Arbitration – What Is It?, 35 New York University Law Review 1031 (1960)


The identification of arbitration as it is constituted in legal lore is not very difficult. There is a near consensus of judicial utterance and statutory provision posing it as a process for hearing and deciding controversies of economic consequence arising between parties. It begins with and depends upon an agreement of the parties to submit their claims to one or more persons chosen by them to serve as their arbitrator. Certain significant legal requirements governing the hearing and decision of the claims submitted attach unless the parties stipulate against them or otherwise waive them; they attach without any necessity of their stipulation. These minimum legal requirements assure:

(1) Mutual rights of hearing. Each party is entitled to reasonable notice of time and place of hearing to be had before the arbitrators sitting in due quorum, an opportunity to present evidence in his own behalf relating to the matter in issue and an opportunity to cross-examine opposing evidence.

(2) Mutual rights that, after hearing, the arbitrators shall render such award on the issues submitted to them as they deem fair and just-whether or not according to law. To the award attach legal finality, conclusiveness and enforceability subject only to limited causes to defeat or vacate the award.

This generic identification of arbitration does not, of course, reckon with the details of distinctions between common law and statutory arbitration, nor with the declared distinctions between arbitration of commercial and labor-management causes. It does not take account of any precise similarities to or differences from processes of settling controversies frequently cited as "appraisals," "valuations" or miscellaneous methods of compromise or settlement. Nor does this identification comprehend so-called "compulsory arbitration.”

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