Issues of arbitrability have generated considerable case law and controversy in the United States in the nearly thirty-five years since the U.S. Supreme Court launched what I have termed the era of “new” and “mass” arbitration in Southland v. Keating. Mass standardized arbitration imposed on workers (in everything from the tech industry to waitressing at Hooters or Waffle House) and customers (in credit card accounts, cellular phone accounts, etc.) spurred a flood of cases and commentary, much of it critical due to the perceived lack of sophistication and bargaining power of those upon whom arbitration (of a type chosen by the employer or vender) is imposed. Commercial arbitration, however, appears to have continued to function much as it did at the time of the enactment of the Federal Arbitration Act, the New York Convention on International Arbitration, and Southland.
Jeffrey W. Stempel, NOTES FROM A QUIET CORNER: USER CONCERNS ABOUT REINSURANCE ARBITRATION – AND ATTENDANT LESSONS FOR SELECTION OF DISPUTE RESOLUTION FORUMS AND METHODS, 9 Arb. L. Rev. 93 (2017).