Law Commons^™

Securities Arbitration: Resolution Of Disputes Between Securities Brokers And Their Customers, Gregory N. Malson

Golden Gate University Law Review

This comment will explore the arbitration of securities disputes between securities brokers and their customers, showing that the investor today is fully protected in an arbitral forum and that the advantages to the investor who arbitrates a claim against their broker are expansive.

Adr: In Search Of The Emperor's New Clothes, Allan E. Morgan

Golden Gate University Law Review

This essay proposes a structure of ADR consistent with the early vision of the commercial sector towards arbitration. ADR as practiced today does not satisfy that vision. Examining current methods of dispute resolution suggests that ADR is a bit like the Emperor's new clothes. The "alternatives" are illusory at best! Finally we go in search of the Emperor's new clothes and conclude that the key to meaningful alternatives hangs in the problem solving closet.

The California Arbitration Act And The 1988 Real Estate Arbitration Amendments: Coming Of Age?, Francis O. Spalding

Golden Gate University Law Review

In 1988, the California Legislature enacted one of the longest, and in many ways one of the most significant, amendments to the California Arbitration Act1 since the adoption of that Act in 1961. Assembly Bill No. 1240, carried by Assemblyman Byron Sher, Democrat of Palo Alto, was introduced on March 3, 1987 under the extra-legislative sponsorship of the California Association of Realtors. Chaptered on September 14, 1988, after significant legislative markup over two sessions, the Bill added to the Act Sections 1298-1298.8, its first provisions dealing expressly with arbitration clauses in real estate contracts. Under Section 1298.8, the provisions of …

International Commercial Arbitration And International Courts, Mark L. Movsesian

Faculty Publications

The editors of this symposium have asked us to address an interesting question. Why hasn't international commercial arbitration’s (ICA's) success been repeated in the context of international courts? In the last few decades, states have created scores of permanent tribunals with jurisdiction to resolve disputes about international law. By and large, though, states have not been as receptive to the rulings of these tribunals. What accounts for this comparative lack of hospitality? Why do states treat ICA and international adjudication so differently?

In this essay, I offer an explanation. States treat ICA and international adjudication differently because they are categorically …

Too Many Motions For Vacatur Of Commercial Arbitration Awards - The Eleventh Circuit Sanctions Unwary Litigants, Christopher Mckinney

Journal of Dispute Resolution

In B.L. Harbert Int'l. v. Hercules Steel Co., the Eleventh Circuit Court of Appeals seemed angered by what they deemed to be another frivolous appeal of a commercial arbitration award. Upon this provocation, the court warned litigants that future baseless appeals would be met with sanctions. By making sanctions a real threat, the court has attempted to promote some goals of arbitration, including finality, but any benefits derived may be offset by the increased confusion the holding has created. Further, the court's mandate represents a divergence from Eleventh Circuit precedent, as past decisions indicated a willingness to hear new arguments …

Parties To International Commercial Arbitration Agreements Beware: Bankruptcy Trumps Supreme Court Precedent Favoring Arbitration Of International Disputes, Lindsay Biesterfeld

Journal of Dispute Resolution

Phillips v. Congelton (In re White Mountain Mining Co.), presents a heightened version of the conflict between the general policy favoring enforcement of arbitration agreements and the policy favoring resolution of bankruptcy-related claims in the bankruptcy court proceedings as the case involves a dispute over the enforcement of an international agreement to arbitrate a claim that is a "core" bankruptcy proceeding. In Phillips, the Fourth Circuit analyzed the underlying purposes of both the bankruptcy code and the federal arbitration statutes, and resolved the conflicting purposes of the two by giving greater deference to the policy favoring resolution of bankruptcy-related claims …

Everybody Loves Arbitration: The Second Circuit Sets Pro-Arbitration Precedent In International Commercial Arbitration Cases, Jasen Matyas

Journal of Dispute Resolution

Phoenix Aktiengesellschaft v. Ecoplas, Inc. presented the Second Circuit with an unresolved question of preemption in international arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention). The court specifically addressed the issue of whether the consent-to-confirmation requirement of section 9 of the Federal Arbitration Act (FAA) conflicted with section 207 of the FAA which does not require such consent. Section 208 incorporates Chapter 1 provisions to the extent that such provisions are not in conflict with Chapter 2. Phoenix held that the two provisions were in conflict, and consent-to-confirmation is not incorporated into Chapter 2. …

A New Code Of Ethics For Commercial Arbitrators: The Neutrality Of Party-Appointed Arbitrators On A Tripartite Panel, Olga K. Byrne

Fordham Urban Law Journal

This article discusses ABA and AAA revisions to the ethics code for commercial arbitrators with respect to the neutrality of arbitrators. This Note describes the importance of the tripartite panel and the new standards in the revised code of ethics. It further examines the opposing arguments concerning the role of party-appointed arbitrators with respect to neutrality. Finally, the Note proposes that the revisers educate participants in the arbitral process of the new standard demanded of all arbitrators, so as to maintain confidence and stability in arbitration.

Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul

LLM Theses and Essays

A leading contemporary expert in arbitration has explained: "The concept of arbitrability determines the point at which the experience of contractual freedom ends and the public mission of adjudication begins. In effect, it establishes a dividing line between the transactional pursuit of private rights and courts' role as custodians and interpreters of the public interest." 1 A major part of the arbitrability doctrine deals with the kind of claims that can fall within the scope of agreements for private dispute resolution. Arbitration clauses are an integral part of the parties' transactions. Nevertheless, the American judiciary historically has refused to enforce …

Resolving Economic Disputes In Russia's Market Economy, Karen Halverson

Michigan Journal of International Law

The purpose of this paper is to examine the recent transformation of state arbitrazh into economic courts along with the development of commercial arbitration in Russia, and to consider the relative utility of these mechanisms for resolving disputes in Russia's evolving market economy. Part I describes state arbitrazh and details its evolution into the existing system of economic courts. Part II discusses the past and recent development of commercial arbitration in Russia as an alternative to litigating domestic disputes. Part III considers various social and historic factors that hinder genuine reform.

The International Commercial Arbitration Explosion: More Rules, More Laws, More Books, So What?, James H. Carter

Michigan Journal of International Law

Review of The UNCITRAL Framework for Arbitration in Contemporary Perspective by Isaak I. Dore

Tax Liability And Inarbitrability In International Commercial Arbitration, Thomas E. Carbonneau, Andrew W. Sheldrick

Journal Articles

This essay engages in a narrow but crucial inquiry into the limits the inarbitrability defense may now impose upon the exercise of arbitral jurisdiction. While it is assumed that matters relating directly to status and capacity, testamentary dispositions, and title to immovable property fall outside the jurisdictional reach of international arbitrators, the question becomes whether any national regulatory laws, such as tax laws, benefit from the same status of inviolability.

Drafting The Dispute Resolution Clause, Whitmore Gray

Book Chapters

Providing in a contract for ways to resolve disputes that may arise presents a substantial challenge to the lawyer. In one sense, this is what a lawyer regularly does in contract drafting-anticipating misunderstandings or problems that experience has indicated are likely to arise, and trying to provide clear solutions in advance. When it comes to drafting a specific clause for the resolution of further disputes that may arise, however, many lawyers are at a substantial disadvantage. The task comes at the end of the substantive negotiations. The client does not want to focus on, or draw the other party's attention …

The Exuberant Pathway To Quixiotic Internationalism: Assessing The Folly Of Mitsubishi, Thomas E. Carbonneau

Journal Articles

The writing on international commercial arbitration often is replete with statements affirming the necessity and advocating the progression of the institution. Indeed, the transnational consensus on commercial arbitration is exceptional - a rare example of viable cohesion in the fragmented arena of international affairs. The unifying spirit of the 1958 New York Arbitration Convention, the uniformity of approach among national courts to the implementation of the Convention, and national legislation supportive of the emerging international consensus on arbitration attest to a willingness to eradicate parochial concerns, to respond to felt needs, and to achieve functional international cooperation.

The United States …

The Two-Way Mirror: International Arbitration As Comparative Procedure, Andreas F. Lowenfeld

Michigan Journal of International Law

In particular, by focusing on selected aspects of the international procedure of international arbitration, as well as on different approaches to the problem of choosing the source of the law to be applied, the author hopes to give the outsider some feeling for the process, and some perception of how international arbitration is different both from domestic arbitration and from litigation in national courts. The author has an additional purpose, as well, however, though: to be sure not to sound too pretentious about it. Focusing on the record, on discovery, on examination of witnesses, and on choosing a choice of …

The Pitfalls Of International Commercial Arbitration, James M. Rhodes, Lisa Sloan

Vanderbilt Journal of Transnational Law

The purpose of this Article is to examine the pitfalls of international arbitration on a broad scale. These pitfalls can be roughly grouped into two categories: (1) those endemic to the process of dispute resolution by a "private extra-judicial tribunal which derives its power from the agreement of the parties,"2 including difficulties unforeseen in the drafting of the agreement that add delay, complications, and expense to the proceedings; and (2) those related to using the rules of a particular institution. Ideally, planning and skillful drafting can eliminate both types of pitfalls and preserve the advantages of arbitration over other available …

Appealability Of Interlocutory Orders Enjoining Or Refusing To Enjoin Commercial Arbitration, Timothy B. Dyk

Kentucky Law Journal

No abstract provided.

Incorporation Of State Law Under The Federal Arbitration Act, Michigan Law Review

Michigan Law Review

This Note proposes a solution to this choice-of-law problem. Section I surveys the courts' response to Congress's silence and finds confusion and disarray. Section II argues that courts should apply the state law pertinent to arbitration unless that law places heavier burdens on arbitration contracts than on other contracts; where state law does discriminatorily burden arbitration, the courts should apply the pertinent state rules applicable to "any contract." It concludes that the "grounds . . . for the revocation of any contract," although determined as a matter of federal policy, are to be found in state law rather than in …

Commercial Arbitration In Federal Courts, James F. Nooney

Vanderbilt Law Review

With increasing frequency attorneys are confronted with disputes arising under commercial contracts which contain arbitration agreements. Before the attorney can advise the client as to his legal position and recommend a course of conduct, he must interpret the effect of the arbitration agreement. Often the first question for the attorney is whether the client (or, in turn, the opposing party) can be forced to arbitrate. The answer depends upon whether agreements to arbitrate future disputes are enforceable under the law applicable to the transaction. Where both parties to the contract are citizens of the same state, the answer is readily …

Development Of Commercial Arbitration Law, Paul L. Sayre

Articles by Maurer Faculty

No abstract provided.