Arbitration is an accepted form of dispute settlement in many countries, including the United States. Perhaps “popular” is a better description given the many lawyers and experts around the world now working in the field of arbitration and the many articles and conferences devoted to the subject. Yet over the past decade, and the past few years, in particular, the tide has subtly shifted. In essays and lectures, two distinguished judges from separate common law countries have questioned the fact of and the process by which private actors control dispute resolution. In 2002, Judge Patrick E. Higginbotham of the U.S. Court of Appeals for the Fifth Circuit lamented the decline of trials and trial lawyers. His focus was on shortcomings in judicial procedure, which gave rise to alternative dispute resolution, mainly mediation, and arbitration. Implicit in his assessment is that federal and state laws, along with judicial precedent, have opened the door for arbitrators to encroach on the judicial function. He has repeated his gentle critique in various essays and articles. Fast forward to 2016, when the Lord Chief Justice of England and Wales, Lord Thomas, questioned arbitration’s interference in law-making. In his Bailii Lecture titled “Developing Commercial Law through the Courts: Rebalancing the Relationship between the Courts and Arbitration,” Lord Chief Justice Thomas called for a new balance between courts and arbitration.
Susan L. Karamanian, COURTS AND ARBITRATION: RECONCILING THE PUBLIC WITH THE PRIVATE, 9 Arb. L. Rev. 65 (2017).