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Full-Text Articles in Law
International Arbitration Is Not Your Father's Oldsmobile, Kenneth F. Dunham
International Arbitration Is Not Your Father's Oldsmobile, Kenneth F. Dunham
Journal of Dispute Resolution
This article provides a short prospectus for the unwary lawyer who must venture into unfamiliar territory abroad. Although there are numerous arbitral forums available in countries all over the world, this article will focus primarily on the LCIA and the ICC. Following a brief history of international arbitration and the history of these two international arbitral forums, the article will discuss some of the major issues in international arbitration such as forum selection, issue preclusion and procedural matters. This article also includes sections on appealing awards and enforcement of awards under existing international treaties. The article is brought to a …
Everybody Loves Arbitration: The Second Circuit Sets Pro-Arbitration Precedent In International Commercial Arbitration Cases, Jasen Matyas
Everybody Loves Arbitration: The Second Circuit Sets Pro-Arbitration Precedent In International Commercial Arbitration Cases, Jasen Matyas
Journal of Dispute Resolution
Phoenix Aktiengesellschaft v. Ecoplas, Inc. presented the Second Circuit with an unresolved question of preemption in international arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention). The court specifically addressed the issue of whether the consent-to-confirmation requirement of section 9 of the Federal Arbitration Act (FAA) conflicted with section 207 of the FAA which does not require such consent. Section 208 incorporates Chapter 1 provisions to the extent that such provisions are not in conflict with Chapter 2. Phoenix held that the two provisions were in conflict, and consent-to-confirmation is not incorporated into Chapter 2. …
Rules For A New Game: Finding A Workable Solution For Applying Class Actions To The Arbitration Process, Andrew Remy Norton
Rules For A New Game: Finding A Workable Solution For Applying Class Actions To The Arbitration Process, Andrew Remy Norton
Journal of Dispute Resolution
In 2003, the Supreme Court's decision in Green Tree Financial Corp. v. Bazzle, indicated that class-wide arbitration was permissible. As a result the number of cases of class-wide arbitration is likely to increase. Because of the few courts that have actually employed class-wide arbitration it has not been definitively settled as to how the hybrid procedure should be conducted. One school of thought emphasizes the class members' due process rights, while another argues that maintaining the integrity of the arbitration process should be a priority. This casenote analyzes the two separate theories and attempts to devise a workable solution for …
Pro-Arbitration Policy: Is This What The Parties Really Intended - The Courts' Treatment Of Forum Selection Clauses In Arbitration Agreements, The, Lance Roskens
Journal of Dispute Resolution
In today's global economy, it is not uncommon for parties from different locations to contract together both in commerce and in employment. Especially in the context of employers, one party will often want any and all disputes it has with its employees to be resolved via arbitration in a certain forum. To accomplish this, employers often include a forum selection clause in the arbitration agreement with the future employee. Thus, if and how courts address forum selection clauses is of paramount importance to employers. In Sterling Financial Investment Group, Inc. v. Hammer, the 11 th Circuit Court of Appeals were …
Arbitrability Of Arbitrability, The, Michelle St. Germain
Arbitrability Of Arbitrability, The, Michelle St. Germain
Journal of Dispute Resolution
If you can read the following only once and understand it, consider yourself part of a very small minority: "It is the dilemma of the box within a box or, in the case of arbitration, the authority as to the decision as to the authority to make the decision." That is "arbitrability" in a nutshell; not a simple concept. Indeed, at oral argument in First Options of Chicago, Inc. v. Kaplan, the confusion occurred to a U.S. Supreme Court Justice.
An Evaluation Of Current Legitimacy-Based Objections To Nafta's Chapter 11 Investment Dispute Resolution Process, Naveen Gurudevan
An Evaluation Of Current Legitimacy-Based Objections To Nafta's Chapter 11 Investment Dispute Resolution Process, Naveen Gurudevan
San Diego International Law Journal
The year 1994 saw the conclusion of a very important trilateral trade and investment treaty in North America: the North American Free Trade Agreement. Since then, this agreement has had a tremendous impact on the trading relations among the three signatory states-the United States, Canada, and Mexico. Of particular significance is Chapter 11, the Investment Chapter. One of the main objectives of Chapter 11 is to provide an effective means for the resolution of disputes between a foreign investor and the host government. To this end, it provides a mechanism whereby private parties can initiate arbitration proceedings against the host …
Market For Private Dispute Resolution Services - An Empirical Re-Assessment Of Icann-Udrp Performance, The, Jay P. Kesan, Andres A. Gallo
Market For Private Dispute Resolution Services - An Empirical Re-Assessment Of Icann-Udrp Performance, The, Jay P. Kesan, Andres A. Gallo
Michigan Telecommunications & Technology Law Review
We present a thorough analysis of one of the ADR regimes that is considered a significant success in Internet markets, the Uniform Dispute Resolution Policy (UDRP) implemented by the Internet Corporation for Assigned Names and Numbers (ICANN). In this work, we perform a complete empirical analysis of the UDRP and evaluate its performance. We then extrapolate the results to other sectors of the Internet market and to private dispute resolution in general.[...] In this paper, we thoroughly critique the performance of the UDRP providers and identify the main variables that determine ICANN's efficiency. For example, one of the key variables, …
When Contracting Around The Law Will Not Work: The Potential Inability To Expressly Prohibit Punitive Damages In Arbitration, Alexia Norris
When Contracting Around The Law Will Not Work: The Potential Inability To Expressly Prohibit Punitive Damages In Arbitration, Alexia Norris
Journal of Dispute Resolution
Just as the availability of all appropriate remedies is an important part of judicial litigation, the attempt to identify and limit those remedies is an issue in an arbitration proceeding. After the United States Supreme Court's 1995 decision in Mastrobuono v. Shearson Lehman Hutton, Inc., it seemed clear that parties would be allowed to seek punitive damages if an agreement did not expressly prohibit such damages. Even so, parties continue to falter in writing agreements meant to contain the proper language that will succeed in limiting the availability of certain remedies. This is due to the continued confusion over how …
California's Unique Approach To Arbitration: Why This Road Less Traveled Will Make All The Difference On The Issue Of Preemption Under The Federal Arbitration Act, Michael G. Mcguiness, Adam J. Karr
California's Unique Approach To Arbitration: Why This Road Less Traveled Will Make All The Difference On The Issue Of Preemption Under The Federal Arbitration Act, Michael G. Mcguiness, Adam J. Karr
Journal of Dispute Resolution
We begin this article by framing the issue in simple terms. The statute itself is clear. The FAA contains a "savings clause" that provides that arbitration agreements shall be "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.", By its terms, the FAA permits courts to refuse to enforce arbitration agreements if the agreement is invalid under state laws that "arose to govern issues concerning the validity, revocability, and enforceability of contracts generally."
If You Lose, It Is Binding, But If You Win - They Get A New Trial: Illinois Uninsured Motorist Arbitration, Michael J. Hanagan
If You Lose, It Is Binding, But If You Win - They Get A New Trial: Illinois Uninsured Motorist Arbitration, Michael J. Hanagan
Journal of Dispute Resolution
In Reed v. Farmers Insurance Group the Illinois Supreme Court-by a 4-3 vote-upheld an arbitration system in which injury victims are bound by awards below $20,000, but in which insurance companies can insist on a trial de novo for awards over that amount.' A recent legislative enactment has complicated the threshold at which awards change from binding to non-binding, by increasing it to $50,000. However, even in cases where a higher threshold applies, those injury victims receiving awards below the threshold (or losing on the issue of liability) are bound by the arbitration, while injury victims receiving awards higher than …
Where Can Unconscionability Take Arbitration - Why The Fifth Circuit's Conscience Was Only Partially Shocked, Mary Jane Groff
Where Can Unconscionability Take Arbitration - Why The Fifth Circuit's Conscience Was Only Partially Shocked, Mary Jane Groff
Journal of Dispute Resolution
As a means of countering the pro-arbitration stance taken by the Supreme Court, a number of lower courts have chosen to police the fairness of arbitration clauses in contracts by using the doctrine of unconscionability. The Supreme Court has authorized the use of generally applicable contract law principles including unconscionability-to invalidate arbitration agreements. Unconscionability provides courts with a flexible tool for coming to the rescue of parties who, if the court is sufficiently shocked, find themselves entangled in unfair arbitration clauses. This Note addresses the Fifth Circuit's use of unconscionability in respect to a particularly one-sided arbitration clause, and examines …