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. …

Will Eeoc V. Waffle House, Inc. Signal The Beginning Of The End For Mandatory Arbitration Agreements In The Employment Context? , Marc A. Altenbernt

Pepperdine Dispute Resolution Law Journal

Since the inception of several employment and discrimination statutes, arbitration has grown exponentially as an alternative for the adjudication of employment disputes. The Supreme Court has traditionally held that statutory claims are indeed arbitrable pursuant to a valid arbitration agreement under the Federal Arbitration Act ("FAA"). In an effort to end employment discrimination based on "race, color, religion, sex, or national origin," Congress enacted the Civil Rights Act of 1964 ("Title VII"). In order to adequately effect this calling, the Equal Employment Opportunity Commission ("EEOC") was created as the Act's primary enforcement mechanism. While arbitration agreements under the FAA and …

The 2000 Revision To The Uniform Arbitration Act: A Harbinger?, Timothy J. Heinsz

Pepperdine Dispute Resolution Law Journal

On August 3, 2000, the National Conference of Commissioners on Uniform State Laws (NCCUSL) unanimously passed major revisions to the Uniform Arbitration Act (UAA). These revisions are the first substantive changes in 55 years to the UAA, which in some form is the basis of arbitration law in 49 jurisdictions. The federal counterpart to the UAA, the Federal Arbitration Act (FAA), has not been amended in any substantial fashion for nearly 75 years. Between Congress's passage of the FAA in 1925 and NCCUSL's approval of the UAA in 1955 and the NCCUSL's approval of the Revised Uniform Arbitration Act (RUAA) …

Sailing Around Erie: The Emergence Of A Federal General Common Law Of Arbitration , Kenneth F. Dunham

Pepperdine Dispute Resolution Law Journal

This paper traces the history of American arbitration from the common law to the FAA. It discusses the FAA as a procedural act prior to Southland v. Keating and as a substantive law act following Southland. It discusses the Erie doctrine as applicable to federal courts and state law preemption. The article concludes that Southland by-passed Erie using the Commerce Clause and the Supremacy Clause to create a federal common law of arbitration.

A Secret In One District Is No Secret In Another: The Cases Of Merrill Lynch And Preliminary Injunctions Under The Faa , Anahit Tagvoryan

Pepperdine Dispute Resolution Law Journal

Public policy favors protecting intellectual property in arbitration, and both Congress and the courts support, and in fact encourage, arbitration of intellectual property disputes. This support stems from the history of favoritism toward private arbitration agreements and other alternative dispute resolution in lieu of judicial adjudication. Because intellectual property disputes often involve commercial parties transacting business across state lines, arbitration is governed by the Federal Arbitration Act (FAA). Availability of provisional remedies such as injunctions has also proven effective in the area of intellectual property disputes. However, unlike the option and process of private arbitration where there is little to …

Waiving Rights Goodbye: Class Action Waivers In Arbitration Agreements After Stolt-Nielsen V. Animalfeeds International , Diana M. Link, Richard A. Bales

Pepperdine Dispute Resolution Law Journal

This article first argues that to determine the enforceability of a class action waiver, courts should take a "totality of the circumstances" approach rather than adopting a bright-line rule. A set of defined factors that also allows courts to consider real-world issues facing litigants will provide a substantial framework for courts to interpret this area of the law and will lead to more consistent and well-reasoned outcomes in the future. These factors include: the probable size of each class member's individual recovery, the potential for retaliation against class members, the awareness of potential class members that their rights have been …

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong

Faculty Publications

This article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole. Written especially for busy lawyers, this article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the unique …

Arbitration Of Trust Disputes: Two Bodies Of Law Collide, S. I. Strong

Faculty Publications

This article considers the various issues that arise when two separate bodies of law – trust law and arbitration law – collide, using recent developments in the field of international commercial arbitration to address some of the more intransigent problems facing trust arbitration. The article focuses on five areas of concern: the potential for impermissible ouster of the courts, the operability and effectiveness of the arbitration provision, the extent to which the arbitration provision is binding on the party against whom arbitration is asserted, proper representation of parties and arbitrability. In so doing, this article introduces a number of new …

Mandatory Arbitration Of Internal Trust Disputes: Improving Arbitrability And Enforceability Through Proper Procedural Choices, S. I. Strong

Faculty Publications

Trusts and their civil law equivalents, often known as foundations or associations, play a large and increasing role in the global economy, holding trillions of dollars worth of assets and generating billions of dollars worth of revenue and trustees’ fees annually. Once considered nothing more than “mere” estate planning devices, trusts are now more often seen in commercial rather than in private contexts, and often feature sophisticated financial institutions as professional trustees. With favorable tax laws in various off-shore jurisdictions making international trusts increasingly popular and hostile trust litigation reaching epidemic proportions, arbitration would seem to be many parties’ dispute …

Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong

Faculty Publications

This essay considers the tension between the autonomous theory of international commercial arbitration and the more interactive theory advanced by Gary Born during his keynote address at the recent “Border Skirmishes” symposium at the University of Missouri School of Law. In his presentation, Born considered the relationship between litigation and international commercial arbitration and distinguished between permissible “border crossings” and impermissible “border incursions.” This essay considers how these concepts play out both in routine interactions between courts and tribunals and more in difficult scenarios, such as those involving anti-suit injunctions. The discussion also presents statistics concerning the amount of ancillary …

Arbitration In The Roberts Supreme Court, George A. Bermann

Faculty Scholarship

The Supreme Court’s most recent set of arbitration law rulings — Stolt-Nielsen, S.A. v. AnimalFeeds Int’l, Rent-A-Center West v. Jackson, and AT&T Mobility v. Concepcion — merits all the attention it has been receiving. Taken collectively, the three decisions evidence the powerful commitment of a Supreme Court majority to arbitration as an alternative form of dispute resolution — a commitment so strong as to override important consumer welfare interests. At a minimum, the trilogy erects substantial barriers to the conduct of class arbitration, a form of arbitration that consumer advocates regard as essential to protecting consumer welfare.

In …

Ascertaining The Parties' Intentions In Arbitral Design, George A. Bermann

Faculty Scholarship

Supreme Court case law teaches us that the federal interest in arbitration does not consist of enforcing agreements to arbitrate according to some sort of abstract or ideal arbitral model, but rather according to the particular arbitral model upon which the parties had agreed. This body of law is driven by the same notions of party autonomy that underlie the law of arbitration generally. That parties may agree to forego access to national courts in favor of arbitration is an initial manifestation of that attitude. By logical extension, the parties also enjoy extraordinary latitude in determining the features that "their" …

Vacatur Of Arbitration Awards: The Poor Loser Problem Or Loser Pays?, Stanley A. Leasure

University of Arkansas at Little Rock Law Review

In B. L. Harbert International, LLC. v. Hercules Steel Co., decided in February 2006, the Eleventh Circuit Court of Appeals took the opportunity to express its "exasperation" with the growing tendency of losing parties in arbitration disputes to take a "never-say-die attitude" in the pursuit of vacatur of arbitral decisions "without any real legal basis for doing so" and its concern for the concomitant threat to the underlying purposes of the Federal Arbitration Act (FAA).

Applying the Harbert "any real legal basis" requirement raises several concerns that can be assuaged only by courts' commitment to focus on balancing following two …