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So Far Yet So Close: Comparing Governing Laws In Arbitration Agreements Under English And Chinese Laws, King Fung Tsang Associate Professor, Weijie Lin L.L.B.
So Far Yet So Close: Comparing Governing Laws In Arbitration Agreements Under English And Chinese Laws, King Fung Tsang Associate Professor, Weijie Lin L.L.B.
Vanderbilt Journal of Transnational Law
The governing law of arbitration agreements determines the validity of an arbitration agreement and equally the entire arbitration. However, there is huge disagreement around the world as to the appropriate choice-of-law rules for deciding this governing law, particularly between rules favoring the governing law of the underlying contract (represented by the English approach) and the curial law (represented by the Chinese approach). By comparing the choice-of-law rules of these two jurisdictions, the authors argue that this disagreement is futile and unnecessary because both jurisdictions’ choice-of-law rules are pro-validity in substance and likely lead to the arbitration agreement being upheld. There …
Law Triangle: Arbitrating International Reinsurance Disputes, J. L. Murphy
Law Triangle: Arbitrating International Reinsurance Disputes, J. L. Murphy
Vanderbilt Journal of Transnational Law
The McCarran-Ferguson Act was enacted to preserve the longstanding prerogative of the States to regulate the insurance industry. States have acted in accordance with this statute to declare arbitration agreements in insurance contracts invalid. However, the Senate has since ratified the New York Convention and appended implementing legislation to the Federal Arbitration Act that obligates domestic courts to recognize arbitration agreements in all international contracts. In an odd convergence of authority, a functional conflict arises between these three bodies of law: the federal law says that state law controls in this area, even over other federal law that might incidentally …
Compulsory Arbitration Agreements In Employment Contracts From Gardner-Denver To Austin: The Legal Uncertainty And Why Employers Should Choose Not To Use Preemployment Arbitration Agreements, John-Paul Motley
Vanderbilt Law Review
In Gilmer v. Interstate/Johnson Lane Corp. the Supreme Court enforced a mandatory arbitration clause in a securities registration application and barred the employee from seeking relief in federal court for his Age Discrimination in Employment Act ("ADEA") claim.' Since the Court's decision compelling arbitration of an employee's statutory claim, labor and employment lawyers have encouraged employers to include binding arbitration clauses covering all potential employer-employee claims in employment applications, handbooks, and collective bargaining agreements ("CBAs"). As one commentator wrote after the Gilmer decision, "[t]he only thing remaining is for employers to begin writing compulsory arbitration clauses into their employment contracts." …
U.S. Supreme Court Subordinates Enforcement Of Regulatory Statutes To Enforcement Of Arbitration Agreements, Christine L. Davitz
U.S. Supreme Court Subordinates Enforcement Of Regulatory Statutes To Enforcement Of Arbitration Agreements, Christine L. Davitz
Vanderbilt Journal of Transnational Law
Through a series of cases culminating with Vimar Seguros Y Reaseguros v. M/V Sky Reefer, the U.S. Supreme Court has developed a strong pro-arbitration stance regarding disputes arising out of international commercial contracts. This Note analyzes the Court's reasons for this stance and compares those reasons with the history and purposes of the Federal Arbitration Act and the New York Convention. The author concludes that the Court's reasons are at odds with the FAA and the New York Convention. The Note further articulates the dangers posed to U.S. public policies that are created by allowing arbitration of statutory claims. The …