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Articles 1 - 4 of 4
Full-Text Articles in Law
No Exceptions: How The Legitimate Business Justification For Unconscionability Only Further Demonstrates California Courts' Disdain For Arbitration Agreements, Thomas H. Riske
Journal of Dispute Resolution
In Davis v. O'Melveny & Myers, the Ninth Circuit Court of Appeals considered whether an arbitration agreement adopted by a law firm and distributed to its employees was enforceable. When interpreting an arbitration agreement, how the contract doctrine of unconscionability should be applied by state courts, is an essential element of this case. While the Federal Arbitration Act ("FAA") has been interpreted to preempt any state law in conflict with it, state laws governing the necessary foundation to revoke a contract remain unaffected. In considering these principles, state courts have applied the doctrine of unconscionability to arbitration agreements in the …
Non-Signatories And The New York Convention, William W. Park
Non-Signatories And The New York Convention, William W. Park
Faculty Scholarship
In the context of arbitrations subject to the New York Convention, the term ,non-signatory' might evoke several lines of inquiry. Must commitments to arbitrate be signed? What legal framework guides decision-making about who agreed to arbitrate? How should courts monitor an arbitrator's assertion of jurisdiction over someone who never signed an arbitration agreement?
The second of these matters - rules about who agreed to arbitrate - will retain our attention in this paper. While few commentators deny that arbitration rests on consent,1 less unanimity exists about what exactly constitutes such consent when one side contests that it ever waived …
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 …
Suing For Small Potatoes: Consumer Class Action Waivers In Arbitration Agreements Distinguished By The Ninth Circuit, Jaimee Conley
Suing For Small Potatoes: Consumer Class Action Waivers In Arbitration Agreements Distinguished By The Ninth Circuit, Jaimee Conley
Journal of Dispute Resolution
In Shroyer, the Ninth Circuit laid a foundation for looking at consumer class action arbitration waivers with greater scrutiny, using a much narrower test. In doing so, it communicates a clear message to large corporations that arbitration agreements that include class action waivers for the purpose of cheating consumers out of small amounts of money will not be tolerated. This case note will address the significance of the Ninth Circuit's decision and the policy arguments supporting such an approach.