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Publication Date

10-4-2026

Abstract

Modern arbitration clauses hide a dirty secret: many don’t actually provide for genuine arbitration. These provisions masquerade as mutual commitments to fair and efficient private dispute resolution but, in truth, are mere imitations of genuine arbitration provisions. Some reserve for the drafter the power to amend or terminate the clause at will without notice or consent; others design the arbitration process to ensure bias from the start; still others depart so radically from the bilateral, informal model blessed by the Supreme Court that they scarcely resemble arbitration at all. These arrangements are arbitration in name only, falling outside the Federal Arbitration Act’s (FAA) scope, which extends only to the enforcement of authentic arbitration agreements.

Much turns on the threshold question of whether a valid arbitration clause exists. Once a court classifies a clause as “arbitration,” the FAA’s machinery activates: state-law defenses are narrowed by federal preemption, delegation provisions channel validity challenges to the arbitrator, and courts must stay litigation and compel arbitration under §§ 3 and 4 of the FAA. But when a clause fails to qualify as arbitration in the first instance, the FAA never applies. No preemption, no delegation, no pro-arbitration presumption—just the application of ordinary contract law. Yet courts routinely treat the label “arbitration” as dispositive, extending FAA protection to provisions that lack arbitration’s basic attributes and enabling sham regimes to proliferate in consumer and employment contracts.

This Article recovers arbitration’s definitional boundaries. Drawing on the FAA’s text and legislative history, and on the Supreme Court’s repeated emphasis on arbitration’s defining features, it identifies three core prerequisites—structural neutrality, procedural minimalism, and mutual obligation. Clauses that lack these features are not simply flawed arbitration agreements—they are not FAA-protected arbitration at all.

This definitional clarity is especially urgent today. Corporations, seeking to stave off mass arbitration, are rewriting their clauses to impose exhaustion requirements, batching rules, queuing regimes, and other procedural chokepoints that transform streamlined dispute resolution into a bureaucratic obstacle course. Plaintiffs are increasingly challenging these anti-mass-arbitration provisions as exceeding arbitration’s definitional boundaries—yet courts lack principled tools for distinguishing genuine arbitration from its counterfeits. A threshold inquiry into whether a provision truly constitutes arbitration would prevent the FAA’s protections from extending to arrangements that bear arbitration’s name but not its substance.

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