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Arbitration, Bankruptcy And Public Policy: A Contractarian Analysis, Paul F. Kirgis

Faculty Law Review Articles

As arbitration agreements become more common, bankruptcy courts increasingly encounter arbitration agreements to which a bankruptcy debtor is a party. Bankruptcy judges must then determine whether to enforce an otherwise valid arbitration clause or to refuse enforcement and decide the underlying dispute themselves. To date, bankruptcy judges facing these issues have tended to see arbitrationa s a competing, quasi-judicialf orum. They typically refuse to enforce arbitration agreements when they find that bankruptcy policy would favor resolution in the bankruptcy proceeding instead of in some other adjudicative forum. Building on previous work, I contend in this article that arbitration is best …