Law Commons^™

Reframing The Dilemma Of Contractually Expanded Judicial Review: Arbitral Appeal Vs. Vacatur , Eric Van Ginkel

Pepperdine Dispute Resolution Law Journal

The Federal Arbitration Act ("FAA") of 1925 was created to ensure enforceability of agreements to arbitrate. The FAA is the centerpiece of the federal arbitration policy as construed by the Supreme Court. Section 10(a) FAA enumerates grounds on which an arbitral award can be set aside. The central issue discussed herein is whether parties can agree by contract to allow one of the parties to initiate review of the arbitral award by a court that would otherwise have jurisdiction over those parties, or whether the court's powers are somehow limited to the grounds for vacatur enumerated in Section 10(a) FAA. …

Welcome To The Jungle: Rethinking The Amount In Controversy In A Petition To Vacate An Arbitration Award Under The Federal Arbitration Act, Christopher L. Frost

Pepperdine Law Review

No abstract provided.

Don't Get Bit: Addressing Icsid's Inconsistent Application Of Most-Favored-Nation Clauses To Dispute Resolution Provisions, Gabriel Egli

Pepperdine Law Review

No abstract provided.

The Evolution Of Investment-State Dispute Resolution In Nafta And Cafta: Wild West To World Order, Jeffrey T. Cook

Pepperdine Law Review

No abstract provided.

International Arbitral Appeals: What Are We So Afraid Of? , Erin E. Gleason

Pepperdine Dispute Resolution Law Journal

This article will explore the advantages of instituting appellate mechanisms in investor-state disputes and international commercial arbitration. Part II begins with a review of the WTO Appellate Body's development and workings, followed by an analysis of other appellate procedures for international trade law arbitration, including the MERCOSUR system's Permanent Court and the Grain and Feed Trade Association's appeals process. Part III examines the current methods for reviewing investor-state arbitration awards under ICSID and NAFTA. Part III goes on to advocate for the creation of an Appeals Facility, separate from current arbitral institutions, which would be empowered to hear appeals in …

The Future Of Commercial Arbitration, Richard Chernick, William F. Rylaarsdam, Thomas J. Stipanowich, Stephen J. Ware

Pepperdine Dispute Resolution Law Journal

This is the Third Annual Robert Weil Lecture that has been hosted by the Los Angeles County Bar Association Dispute Resolution Services (DRS). Bob Weil was a distinguished judge of the Los Angeles Superior Court. He was a legal editor and co-author of the Weil & Brown Civil Procedure Practice Guide, which is the leading guide in California. At the end of his career, he was a popular and effective private judge. Our panel tonight is an extraordinary group of arbitration experts. Professor Tom Stipanowich is Co-Director of the Straus Institute at Pepperdine. He is a former President of the …

Foreclosure By Arbitration?, R. Wilson Freyermuth

Pepperdine Law Review

No abstract provided.

Manifest' Destiny: The Fate Of The 'Manifest Disregard Of The Law' Doctrine After Hall Street V. Mattel, Karly A. Kauf

The Journal of Business, Entrepreneurship & the Law

The Federal Arbitration Act was enacted in 1925 in reaction to widespread judicial resistance to arbitration. While it is difficult to imagine that the drafters of this legislation could have envisioned how prominent arbitration would become in the United States, it is clear that their intention was to ensure that contracts to arbitrate would be enforced and that the intent of the parties would be maintained. In the more than eighty years since the passage of the Act, courts have repeatedly been called on to interpret the Act in order to determine its effect on real world situations. Recently, the …

Unchecked: How Frazier V. Citifinancial Eliminated Judicially Created Grounds For Vacatur Under The Federal Arbitration Act, Sean C. Wagner

Oklahoma Law Review

No abstract provided.

Foreigners Beware: Exploring The Tension Between Saudi Arabian And Western International Commercial Arbitration Practices: In Re Aramco Services Co., Whitney Hampton

Journal of Dispute Resolution

Increasing globalization in the Middle East has resulted in greater commercial interaction between Saudi Arabia and the West. This, in turn, has led to a resurgence of international arbitration agreements between Saudi Arabian businesses and their Western counterparts. However, the strong religious undertones in Saudi Arabian law have given rise to tension with the West, and the United States, in particular. In re Aramco Services is but a tiny piece in a very large puzzle. While the opinion is short, it serves as an indication, or perhaps a reminder, of the larger implications at work. This note will discuss these …

Piercing The Corporate Veil In International Arbitration, Yaraslau Kryvoi Ph.D.

Global Business Law Review

This article examines the application of the piercing the corporate veil concept in international arbitration. Interpretation of this concept is inconsistent even within one domestic legal system, and it is even less predictable in international arbitration when several legal systems come into play. Piercing the corporate veil may help to give a concrete practical meaning to the purpose of an arbitration agreement or a bilateral investment treaty. However, there are downsides of such piercing because it negates many of the benefits which the corporate form offers. Domestic courts are likely not to recognize and enforce an arbitration award piercing the …

Punitive Damages In Commercial Arbitration: A Due Process Analysis, Ira P. Rothken

Golden Gate University Law Review

This comment theorizes that awarding punitive damages in commercial arbitration is "state action" requiring due process. Unlike the traditional contract remedy of compensatory damages, punitive damages have for centuries been under the exclusive control of the State. The Supreme Court has found that a traditional and exclusive State power exercised by a private individual is "state action" requiring due process. Therefore when punitive damages are at issue, the arbitration agreement must consist of a minimum quantum of procedures that balance the protection against erroneous punishment with the State's interest in limiting the burden on arbitration. This comment also theorizes that …

Securities Arbitration: Resolution Of Disputes Between Securities Brokers And Their Customers, Gregory N. Malson

Golden Gate University Law Review

This comment will explore the arbitration of securities disputes between securities brokers and their customers, showing that the investor today is fully protected in an arbitral forum and that the advantages to the investor who arbitrates a claim against their broker are expansive.

Adr: In Search Of The Emperor's New Clothes, Allan E. Morgan

Golden Gate University Law Review

This essay proposes a structure of ADR consistent with the early vision of the commercial sector towards arbitration. ADR as practiced today does not satisfy that vision. Examining current methods of dispute resolution suggests that ADR is a bit like the Emperor's new clothes. The "alternatives" are illusory at best! Finally we go in search of the Emperor's new clothes and conclude that the key to meaningful alternatives hangs in the problem solving closet.

The California Arbitration Act And The 1988 Real Estate Arbitration Amendments: Coming Of Age?, Francis O. Spalding

Golden Gate University Law Review

In 1988, the California Legislature enacted one of the longest, and in many ways one of the most significant, amendments to the California Arbitration Act1 since the adoption of that Act in 1961. Assembly Bill No. 1240, carried by Assemblyman Byron Sher, Democrat of Palo Alto, was introduced on March 3, 1987 under the extra-legislative sponsorship of the California Association of Realtors. Chaptered on September 14, 1988, after significant legislative markup over two sessions, the Bill added to the Act Sections 1298-1298.8, its first provisions dealing expressly with arbitration clauses in real estate contracts. Under Section 1298.8, the provisions of …

International Commercial Arbitration And International Courts, Mark L. Movsesian

Faculty Publications

The editors of this symposium have asked us to address an interesting question. Why hasn't international commercial arbitration’s (ICA's) success been repeated in the context of international courts? In the last few decades, states have created scores of permanent tribunals with jurisdiction to resolve disputes about international law. By and large, though, states have not been as receptive to the rulings of these tribunals. What accounts for this comparative lack of hospitality? Why do states treat ICA and international adjudication so differently?

In this essay, I offer an explanation. States treat ICA and international adjudication differently because they are categorically …