Law Commons^™

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 …

Mass Arbitration 2.0, Andrew B. Nissensohn

Washington and Lee Law Review

Over the past four decades, corporate interests, in concert with the Supreme Court, have surgically dismantled the American civil litigation system. Enacted nearly a century ago, the Federal Arbitration Act (FAA) was once a procedural law mandating that federal courts enforce arbitration agreements between sophisticated parties with equal bargaining power. Through death by a thousand cuts, corporate interests shielded themselves from nearly all methods of en masse dispute resolution. These interests weaponized the FAA into a “one size fits all” means to compel potential litigants with unequal bargaining power into arbitration. The so-called “Arbitration Revolution” is the subject of much …

Which Law Is Supreme? The Interplay Between The New York Convention And The Mccarran-Ferguson Act, Brian A. Briz, César Mejía-Dueñas

University of Miami Law Review

The McCarran-Ferguson Act was enacted in 1945 to safeguard the rights of the states to regulate the business of insurance. It provides that acts of Congress not specifically related to the business of insurance are superseded by state laws that regulate the business of insurance. In 1970, the United States ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Congress enacted Chapter 2 of the Federal Arbitration Act to implement the New York Convention. The New York Convention requires courts to recognize and enforce both private agreements to arbitrate and arbitration awards made …

Bargaining In The (Murky) Shadow Of Arbitration, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Disputing parties who are unable to settle their differences will end up before an adjudicator (typically a judge or jury) who will decide their dispute for them. Dispute resolution scholars have long theorized that disputants bargain in the shadow of this adjudicated outcome, predicting what would happen in court substantively and procedurally, and negotiating based on an assessment of the strength of “bargaining endowments” derived from applicable legal norms. The increasing use of arbitration to resolve commercial disputes in the U.S. means that more and more disputants are negotiating in the shadow of arbitration, not litigation. This Article explores how …

Does Rigorously Enforcing Arbitration Agreements Promote “Autonomy”?, Hiro N. Aragaki

Indiana Law Journal

In recent years, the U.S. Supreme Court has helped transform arbitration law into a radical private-ordering regime in which freedom of contract has come to eclipse public regulation. Arbitration jurisprudence justifies this transformation in part on a profound and longstanding commitment to the ideal of individual autonomy, understood as the freedom—lacking in litigation—to select a disputing process best suited to one’s needs.

In this Article, I question the cogency of this justification. I argue, first, that autonomy has had different and sometimes conflicting meanings even within arbitration jurisprudence. Second, depending on the meaning one ascribes to autonomy, it is at …

Case Watch: Royston, Rayzor, Vickery & Williams Llp V. Lopez, Ramona L. Lampley

Faculty Articles

The Texas Supreme Court effectively gave a “thumbs-up” to attorney-client arbitration agreements in Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494 (Tex. 2015), reh’g denied (Sept. 11, 2015). The plaintiff, Frank Lopez, hired Royston, Rayzor to represent him in a divorce. As part of the representation agreement, Lopez agreed to arbitrate any disputes arising out of the attorney-client relationship, but the law firm excluded from the arbitration agreement any claims it might have against Lopez for expenses or fees. Lopez later sued Royston, Rayzor and the firm moved to compel arbitration.

Lopez contended that the arbitration agreement …

Mandatory Process, Matthew J.B. Lawrence

Faculty Scholarly Works

This Article suggests that people tend to undervalue their procedural rights—their proverbial “day in court”—until they are actually involved in a dispute. The Article argues that the inherent, outcome-independent value of participating in a dispute resolution process comes largely from its power to soothe a person’s grievance— their perception of unfairness and accompanying negative emotional reaction—win or lose. But a tendency to assume unchanging emotional states, known in behavioral economics as projection bias, can prevent people from anticipating that they might become aggrieved and from appreciating the grievance-soothing power of process. When this happens, people will waive their procedural rights …

When “Yes” May Actually Mean “No”: Rethinking Informed Consent To Adr Processes, Elayne E. Greenberg

Faculty Publications

(Excerpt)

It is time for us to rethink how to achieve meaningful party consent to ADR processes such as mediation and arbitration. I, along with my colleagues Professors Jeff Sovern, Paul F. Kirgis and Yuxiang Liu, recently contributed to the growing body of research finding that a party’s consent to use an ADR process rather than utilizing a court to resolve the dispute is too often neither informed nor consensual. In our empirical study “’Whimsy Little Contracts’ With Unexpected Consequences: An Empirical Analysis of Consumer Understanding of Arbitration Agreements,” we found a paucity of consumer awareness and understanding of arbitration …

Mandatory Process, Matthew Lawrence

Matthew B. Lawrence

Employment Arbitration Reform: Preserving The Right To Class Proceedings In Workplace Disputes, Javier J. Castro

University of Michigan Journal of Law Reform

The recent judicial enforcement of class waivers in arbitration agreements has generated ample debate over the exact reach of these decisions and their effects on the future of collective action for consumers and employees. In AT&T Mobility v. Concepcion, a 5-4 majority of the Supreme Court majority held that the Federal Arbitration Act (FAA) preempted state laws prohibiting companies from incorporating class action waivers into arbitration agreements. The Court upheld such waivers on the grounds that they are consistent with the language and underlying purpose of the FAA. Most courts across the country have since reinforced the strong federal policy …

Barras V. Bb&T;: Charting A Clear Path To Apply Concepcion Through A Quagmire Of Divergent Approaches, Jacob Johnson

Mercer Law Review

A recent series of Supreme Court opinions, climaxing in the landmark case AT&T Mobility LLC v. Concepcion, has undermined the validity of applying unconscionability to arbitration agreements and generated divergent opinions in lower courts. The saving clause of the Federal Arbitration Act of 1927, 9 U.S.C. § 2 (FAA saving clause), states that "an agreement in writing to submit to arbitration ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist ... for the revocation of any contract." Until Concepcion, unconscionability was an established ground for revoking arbitration agreements under the FAA saving clause. In …

The Unjustified Furor Over Securities Arbitration, Gilbert R. Serota

Pepperdine Law Review

No abstract provided.

Determining Arbitrability Of The Dispute: The Clear And Unmistakable Standard For Choice Of Law In Arbitration Agreements , Kristen Sanocki

Journal of Dispute Resolution

This note will also address the "clear and unmistakable" standard adopted by the Ninth Circuit and used to determine whether or not parties have agreed to apply non-federal arbitrability law. Based on the Ninth Circuit's reasoning in Cape Flattery Ltd. v. Titan Mar., LLC, this Note concludes that the court properly extracted a standard normally used to determine whether a court decides arbitrability as applicable to determining whether parties have sufficiently contracted for non-federal arbitrability law. Lastly, this Note will address the interpretation of arbitration clauses under federal law.

Employment Discrimination Decisions From The October 2008 Term, Drew S. Days Iii

Touro Law Review

Several employment discrimination decisions were handed down this Term. They were Ricci v.DeStefano (Title VII); Gross v.FBL Financial Services, Inc. (Age Discrimination in Employment Act); AT & T Corp. v. Hulteen (Pregnancy Discrimination Act); and 14 Penn Plaza L.L. C. v. Pyett, which concerned the impact of arbitration agreements upon the reach of federal employment discrimination laws.

First Options Of Chicago, Inc. V. Kaplan And The Kompetenz-Kompetenz Principle , Adrianna Dulic

Pepperdine Dispute Resolution Law Journal

In 1995, the United States Supreme Court in First Options of Chicago, Incorporated v. Kaplan considered whether arbitral tribunals or courts should have the primary power to decide if parties agreed to arbitrate the merits of the dispute and whether the court of appeals should accept the district court's findings of fact and law or apply a de novo standard of review. The Court unanimously held that, unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitral tribunal. Furthermore, in such a case, …

Charge Me, Pay Me, But Don't Even Think Of Litigating Me: The Dominance Of Arbitration In Truth-In-Lending Claims , M. Susan Hale

Pepperdine Dispute Resolution Law Journal

This article analyzes the impact of the courts' ever increasing priority to enforce arbitration agreements in Truth In Lending Act (TILA) claims and reform. Part I entails a general discussion of TILA's logistics; the goals, the means, and the remedies. Part II briefly traces the rise of arbitration as well as evaluating its various advantages and disadvantages. Part III reports on the current emphasis of enforcing arbitration agreements in federal courts by explaining the basis of enforcing the agreement. Part IV explores the impact of arbitrating TILA claims on the claim and on individuals. Part V provides an analysis of …

The State Of Arbitral Fees After Green Tree Financial: Uncertainty And Contradiction Demands Further Guidance From The Supreme Court, Kevin C. Clark

Pepperdine Dispute Resolution Law Journal

There are millions of employees in America who work every day without regard to the technical and seemingly mundane matters that govern their employment. What they don't realize however, is that their employment may be governed by an arbitration agreement. The terms of the arbitration agreement may be unclear until a dispute arises. This is particularly applicable in the area of arbitral fees, where there is a split among United States Courts of Appeals when addressing the issue of who should pay the fees arising from the arbitration of employment disputes. This fissure in American jurisprudence is the subject of …

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 …