This article begins with a brief description of what the Wilko Court said with respect to the vacatur of arbitral awards and how federal and state appellate courts have construed that language. Traditional American arbitration vacatur law, including but not limited to the cases relied upon by the Wilko Court, are then reviewed in depth such that the Wilko decision and the Wilko Court's choice of language may be placed in context and fully examined. The intent and proper operation of the FAA are then discussed based on both the legislative history of the FAA and other authorities that consistently recognize the fundamental objective of the FAA is to enforce private agreements to resolve civil disputes through arbitration processes. Next, the Wilko decision is reconsidered in light of traditional vacatur law and the intent of the FAA. The clearly discemable manner in which the Wilko Court modestly strayed, no doubt inadvertently, from that law is highlighted and the erroneous foundation for the contemporary doctrine of manifest disregard of the law, as applied by every federal circuit, is thereby exposed. Finally, the article concludes by briefly discussing the contemporary issues that implicate principles of party autonomy in connection with the review and finality of arbitral awards. This paper emphasizes that until such time as Wilko is reconsidered, and principles of party autonomy are resurrected under the FAA, the objective of the enforcement of party autonomy will never be realized.
James M. Gaitis,
Unraveling the Mystery of Wilko v. Swan: American Arbitration Vacatur Law and the Accidental Demise of Party Autonomy ,
7 Pepp. Disp. Resol. L.J.
Available at: https://digitalcommons.pepperdine.edu/drlj/vol7/iss1/1