Law Commons^™

#Metoo’S Landmark, Yet Flawed, Impact On Dispute Resolution: The Ending Forced Arbitration Of Sexual Assault And Sexual Harassment Act Of 2021, Imre S. Szalai

Northwestern Journal of Law & Social Policy

On March 3, 2022, President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the Amendment) into law. This Amendment is the most significant change in the last several decades to the Federal Arbitration Act (the FAA), the main federal law governing arbitration since 1925. This landmark Amendment is also the most important federal legislation to arise thus far from the #MeToo movement. The Amendment invalidates predispute arbitration agreements in cases involving sexual harassment or sexual assault, thereby allowing survivors to proceed with their claims in public court with more robust procedural protections. …

Submission Of Amici Briefs In Arbitration Related To Environmental Concerns: Developing A Better Framework For Their Consideration Under Icsid Rule 37(2), Clarissa Galaviz Lizarraga

Northwestern Journal of International Law & Business

This note examines the consideration of amicus curiae briefs in international arbitration matters under the International Centre for Settlement of Investment Disputes (“ICSID”), specifically focusing on arbitration cases involving environmental concerns. The note explores trends in consideration of amicus briefs in environmental arbitration by taking a historical look at cases and the rationales behind the decisions of the tribunals to consider amicus briefs and raises concerns regarding a better, uniform approach to amicus briefs.

To achieve a better system of consideration of amicus briefs when environmental concerns are at play, given their public and ecologic interest, the author suggests reworking …

Class Arbitration Waivers Cannot Be Found Unconscionable: A Pervasive And Common "Mis-Concepcion", Emma Silberstein

Northwestern University Law Review

In 1925, Congress enacted the Federal Arbitration Act (FAA) as a means of quelling judicial hostility towards arbitration agreements, providing a mechanism for the enforcement of such agreements. The Supreme Court’s treatment and application of the FAA has evolved over time, and in recent decades the FAA has been massively extended to cover not only arm’s-length commercial transactions, but consumer and employment contracts as well. The Supreme Court, its previous hostile stance long forgotten, has created a policy of favoring arbitration and striking down many an argument that may interfere with that policy. In particular, the Court solidified its position …

A New Strategy For Regulating Arbitration, Sarath Sanga

Northwestern University Law Review

Confidential arbitration is a standard precondition to employment. But confidential arbitration prevents a state from ensuring or even knowing whether employees’ economic, civil, and due process rights are respected. Further, employers regularly require employees to waive rights to class proceedings (thereby foreclosing small claims) and to arbitrate under the laws of another jurisdiction (thereby evading mandatory state law). In response, states have tried to regulate arbitration provisions, arbitral awards, and arbitral processes. But these efforts have all failed because the Supreme Court says they are preempted by the Federal Arbitration Act.

In this Article, I argue that states can and …

The Role Of Precedent In Defining Res Judicata In Investor–State Arbitration, Pedro J. Martinez-Fraga, Harout Jack Samra

Northwestern Journal of International Law & Business

As international arbitration, and investment arbitration in particular, becomes more prevalent, the risks of doctrinal fragmentation also increase, in part driven by the disparate treatment of the doctrine of res judicata throughout most jurisdictions, and in the arbitration context. Notwithstanding the general consensus regarding the broad contours of res judicata and its firm position as a principle of international law, there is little agreement regarding how it is to be administered. These developments threaten to undermine the international arbitration system, wresting from it normative legitimacy. The U.S. common law version of res judicata, which is distinct from res judicata as …

Ducks And Decoys: Revisiting The Exit-Voice-Loyalty Framework In Assessing The Impact Of A Workplace Dispute Resolution System, Zev J. Eigen, Adam Seth Litwin

Faculty Working Papers

Until now, empirical research has been unable to reliably identify the impact of organizational dispute resolution systems (DRSs) on the workforce at large, in part because of the dearth of data tracking employee perceptions pre- and post- implementation. This study begins to fill this major gap by exploiting survey data from a single, geographically-expansive, US firm with well over 100,000 employees in over a thousand locations. The research design allows us to examine employment relations and human resource (HR) measures, namely, perceptions of justice, organizational commitment, and perceived legal compliance, in the same locations before and after the implementation of …

A Moral Contractual Approach To Labor Law Reform: A Template For Using Ethical Principles To Regulate Behavior Where Law Failed To Do So Effectively, Zev J. Eigen, David S. Sherwyn

Faculty Working Papers

If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative—offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties' reciprocal contractual obligations, and (4) moral means …

Interlocutory Review By Agreement Of The Parties: A Preliminary Analysis, James Pfander, Dave Pekarek-Krohn

Faculty Working Papers

Although the nineteenth century's final judgment rule no longer represents an absolute barrier to interlocutory appellate review, scholars disagree about what should take its place. Some favor a regime of discretionary interlocutory review, with power conferred on appellate courts to select issues that warrant intervention. Others reject discretionary review as a waste of appellate resources and call upon the rule makers to identify specific categories of non-final orders that always warrant review. While the Supreme Court's collateral order doctrine bears some similarity to this process of categorization, the Court may have called a halt to the judicial recognition of new …

Enforcement Of Arbitral Awards Against Foreign States Or State Agencies, S.I. Strong

Northwestern Journal of International Law & Business

For years, U.S. courts took a highly deferential, "hands-off' approach to litigation involving a foreign sovereign. However, recent case law out of the D.C. Circuit has radically diminished the jurisdictional elements that plaintiffs must establish before a U.S. court will assert its power to enforce an arbitral award against a foreign state or state agency. This Article investigates this recent shift and describes what contacts, if any, a foreign state or state agency must have with the United States before a U.S. court will assert jurisdiction under sections 1605(a)(1) and 1605(a)(6) of the U.S. Foreign Sovereign Immunities Act ("FSIA").4 This …

Knowledge, Legitimacy, Efficiency And The Institutionalization Of Dispute Settlement Procedures At The World Trade Organization And The World Intellectual Property Organization, Michael P. Ryan

Northwestern Journal of International Law & Business

International legal research regarding international economic dispute settlement tends to be a-theoretical. A theoretically-grounded analytic framework is employed in this article which draws from scholarship from political science, sociology, and economics regarding institutions and international governmental organizations. The knowledge-legitimacy-efficiency analytic framework is applied in this article to studies of General Agreement on Tariffs and Trade (GA TT)/World Trade Organization (WTO) dispute settlement in order to relate this relevant scholarship to the economic field under primary study, Internet domain names. GA TT/WTO knowledge regarding international trade law has thickened through multi-lateral trade negotiations and dispute settlement decisions. The WTO's legitimacy is …

New Trends In The Practical Application Of Icc Rules Of Arbitration, Yves Derains

Northwestern Journal of International Law & Business

During the 1970s, arbitration has become the normal way of settling disputes arising in international trade. The statistics provided by the International Chamber of Commerce (ICC) Court of Arbitration (the Court, or the Court of Arbitration) are evidence of the incidence of the increasing recourse to arbitration by businesses involved in international transactions; of an increase in the amounts in dispute; of an increasing diversity in the nationalities of clients3 as well as in the types of the disputes submitted to arbitration.4 The development of international arbitration in the last decade may be explained by the fact that no other …