Title

Common Law or Common Sense: Arbitral Contract Construction

Document Type

Article

Publication Date

12-1992

Publication Source

Arbitration Journal

Volume

47

Issue

4

Inclusive pages

51-55, 76

Publisher

American Arbitration Assoication

ISBN/ISSN

00037893

Peer Reviewed

yes

Abstract

The premise that the arbitrator's authority derives from and is limited to the contract is regarded by many as axiomatic. Some scholars argue that the law must be applied where the statute is clear and the arbitrator is competent to apply it. Statutory law is but one of the many controversies concerning the role of law in arbitration. The less debated and perhaps more critically important legal issue is the role of common law in arbitration. Arbitrators borrow the common law rules from the courts, but they disagree as to what is borrowed and how it is applied. Because common law is based on common sense, it seems natural that arbitrators would borrow from this body of law in those applications that serve to interpret and apply the parties' collective bargaining agreements appropriately. Perhaps more critical to arbitration's utility is the idea of arbitrator created common law. The search for general principles, such as proposed arbitral common law or predictive models of arbitration, is not without merit.

Keywords

Common law, Collective bargaining, Awards, Arbitration; Agreements

Disciplines

Industrial and Organizational Psychology | Organizational Behavior and Theory

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