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The Fallacy of Consent: Should Arbitration Be a Creature of Contract?

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The Fallacy of Consent: Should Arbitration Be a Creature of Contract? Emory International Law Review Volume 35 Issue 2 2021 The Fallacy of Consent: Should Arbitration Be a Creature of Contract? Fabio Núñez del Prado Follow this and additional works at: https://scholarlycommons.law.emory.edu/eilr Part of the International Law Commons Recommended Citation Fabio Núñez del Prado, The Fallacy of Consent: Should Arbitration Be a Creature of Contract?, 35 Emory Int'l L. Rev. 219 (2021). Available at: https://scholarlycommons.law.emory.edu/eilr/vol35/iss2/2 This Article is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory International Law Review by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. NÚÑEZ DEL PRADO_3.22.21 3/24/2021 10:54 AM THE FALLACY OF CONSENT: SHOULD ARBITRATION BE A CREATURE OF CONTRACT? Fabio Núñez del Prado* ABSTRACT Arbitration is a creature of contract. This paradigm is so basic that it is accepted in all the States of the world. Nevertheless, arbitration is perceived as the most suitable method for the settlement of commercial disputes. Virtually all commercial disputes are resolved through arbitration. The natural order of things has been reversed. In commercial matters, at least, arbitration is the rule, and courts the exception. Why is it, then, that parties must opt in for a solution which appears as the most natural one in the community? I propose to question this default rule and propose an extreme shift: Arbitration should become the default jurisdiction. INTRODUCTION ............................................................................................. 221 I. THE FALLACY OF CONSENT ............................................................... 222 II. PROBLEMS CAUSED BY THE CONTRACTUAL FOUNDATION OF ARBITRATION .................................................................................... 226 A. A Case to Illustrate ................................................................... 226 B. The Countless Problems Created by the Contractual Nature of Arbitration ................................................................................ 228 1. The Risk of Contradictory and Unenforceable Arbitral Awards ................................................................................ 228 2. Arbitrators Cannot See the Forest for the Trees ................ 230 * Yale LL.M. International associate at the international arbitration practice of Clifford Chance. Professor of the Universidad Carlos III de Madrid (LL.M. and Law School), the Pontificia Universidad Católica del Perú, and Universidad Científica del Sur. I am deeply grateful to Professor Michael Reisman for all the guidance he gave me during the supervision of this article. I owe particular gratitude to Professors Guido Calabresi, Bruce Ackerman, Emmanuel Gaillard, Yas Banifatemi, Owen Fiss, Harold Koh, Alan Schwartz, Judith Resnik, Ian Ayres, Daniel Markovits, George Priest, Stephen Carter, Abby Gluck, Alvin Klevorick, Henry Hansmann, Tom Tyler, Gilles Cuniberti, Luca Radicati di Brozolo, Alfredo Bullard, Fernando Cantuarias, Enrique Ghersi, Huáscar Ezcurra, Enrique Pasquel, Guillermo Cabieses, Mario Reggiardo and Domingo Rivarola for fruitful conversations and thoughtful feedback at various stages of the writing process. Finally, I want to thank to Philip Bender, Santiago Oñate, Martín Haissiner, Alvin Padilla-Babilonia, Kenneth Khoo, Hugo Forno, Lucas Ghersi, and Manuel Ferreyros for enriching discussions. All remaining mistakes are my own. NÚÑEZ DEL PRADO_3.22.21 3/24/2021 10:54 AM 220 EMORY INTERNATIONAL LAW REVIEW [Vol. 35 3. An Inconsistent and Hypocritical Model in Which Consent Is Routinely Sacrificed Prevails: The Elasticity of Consensualism in Arbitration ............................................. 230 4. The Contractual Foundation of Arbitration Is Very Often Strategically Used by Parties to Delay and, in Some Cases, Even Evade the Arbitration ................................................ 234 5. Fictions Need to Be Created to Correct the Deficiencies of the System ........................................................................... 235 6. Many Arbitrable Controversies Are Not Resolved through Arbitration .......................................................................... 236 a. Torts Cases .................................................................. 236 b. Real-Estate Cases ........................................................ 236 c. Complex Contractual Cases Involving More Than One Legal Relationship ....................................................... 237 7. The Contractual Foundation of Arbitration Is a Strong Impediment to Initiate Class-Actions ................................. 237 III. ARGUMENTS IN FAVOR OF NON-CONSENSUAL ARBITRATION .......... 238 A. Economic Argument: Arbitration Must Be Recognized as the Default Jurisdiction Because under Economic Theory the Default Rules Should Be Designed Based on What the Majority Prefers ...................................................................................... 239 B. Empirical Argument: Evidence That Demonstrates That Consent Is Not Inherent to Arbitration—the Successful Story of Mandatory Arbitration ............................................................. 244 C. Axiological Argument: Arbitration Must Be Recognized as the Default Jurisdiction Because This System Would Be More Compatible with Party Autonomy ............................................. 246 1. A Case to Illustrate the Problem ........................................ 246 2. The Recognition of the Contractual Foundation of Arbitration Is a Constructivist Phenomenon ...................... 248 IV. PROPOSAL: ARBITRATION SHOULD BE THE DEFAULT JURISDICTION ..................................................................................... 254 A. What Does It Imply That Arbitration Is the Default Jurisdiction? ............................................................................. 254 B. Consequences of Recognizing Arbitration as the Default Jurisdiction ............................................................................... 255 CONCLUSION ................................................................................................. 256 NÚÑEZ DEL PRADO_3.22.21 3/24/2021 10:54 AM 2021] THE FALLACY OF CONSENT 221 INTRODUCTION “The task is not so much to see what no one has yet seen; but to think what nobody has yet thought, about that which everybody sees” —Erwin Schrödinger, Nobel Prize, Physics Paradigms are one of the worst enemies of knowledge. This is because behind paradigms there are hidden innovations that we do not perceive because of our tendency to respect what has already been established. Undeniably, paradigms can condemn us to intellectual immobility.1 The basic paradigm of arbitration is that consent is the cornerstone of arbitration. Thus, the default rule has always been that, unless the parties agree otherwise, they should resolve their disputes in courts.2 This rule has been a misunderstood paradigm of history. The contractual foundation of arbitration is so internalized in the mind of arbitral actors that it is often thought that arbitration and consent are like shadow and body.3 This Article attempts to knock down the remaining columns on which the contractual foundation of arbitration was built in order to demonstrate that, at least in commercial disputes, the state should no longer be considered the default provider in resolving commercial disputes. Hence, this Article will demonstrate on its face that in commercial disputes, arbitration must be the default jurisdiction. This would imply a shift of the paradigm in which arbitration would be non-consensual. Consent is an obstacle for the effectiveness of international arbitration. Arbitral tribunals and arbitral institutions are so aware of this reality that they frequently bypass consent without regrets. Additionally, several professors from Yale Law School have argued that default rules should reflect the preferences of the majority. At least in international commerce, virtually all disputes are resolved through arbitration. Hence, the latest surveys conducted by Queen Mary University and White & Case show that an overwhelming majority of the respondent group (ninety-seven percent) prefer arbitration as their method of resolving cross-border disputes.4 1 See FABIO NÚÑEZ DEL PRADO, DESMITIFICANDO MITOS: ANÁLISIS ECONÓMICO DE LA DOBLE INSTANCIA EN EL PROCESO CIVIL: PRESENTACIÓN DE ALFREDO BULLARD [DEMYSTIFYING MYTHS: ECONOMIC ANALYSIS OF THE RIGHT TO APPEAL: PRESENTATION OF ALFREDO BULLARD] 11 (Thomson Reuters 2016). 2 PAUL FRIEDLAND & STAVROS BREKOULAKIS, INTERNATIONAL ARBITRATION SURVEY: THE EVOLUTION OF INTERNATIONAL ARBITRATION 5 (2018). 3 Id. 4 Id. NÚÑEZ DEL PRADO_3.22.21 3/24/2021 10:54 AM 222 EMORY INTERNATIONAL LAW REVIEW [Vol. 35 If that is so—if it is known that the majority demands arbitration to resolve their disputes and it is known that arbitration has become the natural mechanism to resolve disputes—why isn’t arbitration recognized as the default jurisdiction?5 It seems that the recognition of arbitration as the default jurisdiction is inevitable. Moreover, converting to arbitration in the default jurisdiction will generate positive externalities since it would alleviate the burden of the commercial justice system by outsourcing a range of disputes to arbitration. Similarly, to the extent that the cost of the proceedings would be internalized by the litigants, it will also
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