Abstract
The question of whether arbitration awards should be appealable, or at least subject to enhanced judicial review, is heavily contested in the scholarly literature. This Article explains that arguments favoring or rejecting appellate review have focused on stylized conceptions of arbitration either as a species of contract or as a substitute for adjudication. This Article argues that these two dominant approaches—termed here the “contractarian” and “arbitration-as-adjudication” models—fail to adequately describe modern arbitration practice. Thus, any argument for or against appellate review that rests heavily on either of the two conceptions is unconvincing. Instead, this Article argues that the question of whether arbitration awards should be appealable follows not from an inquiry into the nature of arbitration, but from an inquiry into the legal substance of the particular dispute to be arbitrated. From this, this Article contends that for the arbitrations which tend to be private matters concerning only contractually created rights, appellate review is inappropriate, as it undermines the fundamental social solidarism of contract-making. In other words, reserving the right to appeal is anti-social. However, this Article also argues for a “public policy exception” to this general presumption against appellate review; for disputes that implicate publicly created rights, parties should have an opportunity to seek meaningful and substantive review.
Recommended Citation
Abdi Aidid,
Rethinking Appeals in Arbitration,
130
Dick. L. Rev.
43
(2025).
Available at:
https://insight.dickinsonlaw.psu.edu/dlr/vol130/iss1/3