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Toward A Contractual Approach To Arbitral Immunity, Peter B. Rutledge

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This Article breaks from conventional wisdom in both case law and scholarship. It proposes a simple but novel thesis: Arbitrators and arbitral institutions, in cases of voluntary submission of disputes, should not be entitled to any form of legal immunity. Instead, any limit on or waiver of the arbitrator's or institution's liability should come in the form of a contractual release-either adopted in the parties' arbitration agreement or negotiated between the parties and the arbitrator.

Central to this thesis is a distinction between two types of immunity. The first form of immunity is “contractual immunity.” The hallmark of contractual immunity …