One of the biggest problems with arbitration is that there is nothing but the arbitrator's conscience to insure that arbitration decisions conform to the law and the facts, even though they are, in principal, supposed to conform to both. Arbitration clauses with expanded judicial review could address this flaw that discourages parties from utilizing this forum.
This article argues that courts should enforce private contractual agreements for expanded judicial review in arbitration agreements. This article demonstrates that the court decisions enforcing such arbitral contractual provisions are consistent with the FAA’s purpose to ensure enforcement of parties’ arbitral agreements, whatever the form. Furthermore, this article argues that the FAA does not preclude courts from reviewing awards under expanded grounds where parties so agree, because the statutory structure provides default rather than mandatory grounds for award vacatur. Finally, this article concludes that permitting the parties to contract for expanded judicial review serves the public policy favoring arbitration, insofar as it encourages arbitration by giving parties who may be extraordinarily concerned with obtaining the legally correct outcome the ability to contract for expanded judicial review.
Richard A. Bales, Contracting Around the FAA: The Enforceability of Private Agreements to Expand Judicial Review of Arbitration Awards, SSRN (2025).
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