Abstract

A leading contemporary expert in arbitration has explained: "The concept of arbitrability determines the point at which the experience of contractual freedom ends and the public mission of adjudication begins. In effect, it establishes a dividing line between the transactional pursuit of private rights and courts' role as custodians and interpreters of the public interest." 1 A major part of the arbitrability doctrine deals with the kind of claims that can fall within the scope of agreements for private dispute resolution. Arbitration clauses are an integral part of the parties' transactions. Nevertheless, the American judiciary historically has refused to enforce arbitration agreements, following the English precedent. English courts, jealously guarding their dispute resolution monopoly, traditionally refused to enforce agreements to arbitrate on the ground that such agreements ousted the courts from their jurisdiction. Despite this explicit federal statutory requirement, many authorities have continued to accord arbitration clauses a lesser status than other contract terms and have failed to provide coherent and fair enforcement of arbitration agreements. These courts have posited that the judiciary may, in its discretion, refuse to enforce arbitration clauses in order to preserve exclusive federal jurisdiction over certain claims or to better implement the policies of other federal statutes. The analysis in this thesis will demonstrate the trend of the U.S. courts towards widening the scope of the arbitrability of disputes arising from claims based on public policy-oriented statutes. Particular emphasis will be given to federal antitrust, securities regulation, and bankruptcy law.

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