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Unbundling Procedure: Carve-Outs From Arbitration Clauses, Christopher R. Drahozal, Erin O'Hara O'Connor

Florida Law Review

A rich literature analyzes how parties choose between courts and arbitration. Within this literature, scholars traditionally assume that sophisticated parties make a single choice between courts and arbitration based on the bundle of dispute resolution services that seems most appealing ex ante. As with the literature on bundling generally, however, legal scholars are increasingly focusing their attention on the unbundling of court and arbitral procedures—that is, the ability of parties to contract for à la carte or customized dispute resolution procedures in court and arbitration. While such unbundling is common ex post, i.e., after a dispute arises, most …