Congress is considered changes to the Federal Arbitration Act and the central premise underlying these bills is the idea that the parties to these agreements (typically there is an individual on one side and a company on the other) tend to occupy unequal bargaining positions. The drafters of these bills conclude from this that the individual’s choice to opt into arbitration before a dispute has arisen cannot be considered free and voluntary, and thus, the arbitration agreement should be considered void and unenforceable.
Defenders of these bills claim that the United States, when compared to other nations, stands alone in allowing pre-dispute agreements between companies and individuals to be enforced. But is that true? We set out to test this claim in order to determine whether U.S. policy makers can learn anything from their foreign counterparts. 3 Our research indicates that the treatment of pre-dispute arbitration agreements in other nations is not as portrayed by proponents of these bills, suggesting that Congress should take these other approaches into consideration before rushing to adopt purported reforms.
Peter B. Rutledge and Anna W. Howard,
Arbitrating Disputes Between Companies and Individuals: Lessons From Abroad
, 65 Disp. Resol. J. 30
Available at: https://digitalcommons.law.uga.edu/fac_artchop/1239