Dispute Resolution and Arbitration Commons^™

Arbitration's Unraveling, Myriam E. Gilles

Articles

It has been over a decade since the Supreme Court declared that the Federal Arbitration Act preempts state-law policies that stand as an obstacle to enforcement of the class-banning arbitration clauses that companies tuck into standard-form contracts. In that time, plaintiffs’ lawyers have tried challenging class action–banning arbitration provisions on myriad legal grounds, as well as pressing for federal and state legislation to undo the Court’s ruling in AT&T Mobility LLC v. Concepcion. Neither strategy has borne much fruit—until now. In the past few years, congressional action has exempted specific categories of cases from mandatory arbitration, suggesting that an area-by-area …

Special Challenges In Execution Of Arbitral Awards In Public Private Partnerships, Srividhya Ragavan, Niraj Kumar Seth

Faculty Scholarship

With around 47 million pending cases at various stages of Indian judiciary and one of the lowest levels of judges per million of population in the world, India’s arbitration regime presents a ray of hope for millions of Indians who face the prospect of justice being denied to them due to inordinate delays caused by a clogged judicial pipeline. The enactment of the Arbitration and Conciliation Act, 1996 was presented as a viable alternative to resolve commercial disputes in a timely manner. This paper uses a case study to discuss how arbitration in India has not fulfilled the timeliness promise …

The Use Of Arbitration Clauses By Social Media Websites: A Critique, Kavya Jha, Ananya Singh

Pepperdine Dispute Resolution Law Journal

The arbitration clauses contained in the Terms of Services (ToS) of most social media websites mandate arbitration and the waiver of class arbitration.1 In light of this reality, this article seeks to analyze the legal position with respect to mandatory arbitration and class arbitration waiver in the United States, India, and European Union (EU). It compares and juxtaposes the respective positions in these three jurisdictions to find that whereas the United States has been pro-arbitration to the extent of being detrimental to consumer interest, India has adopted an overly protectionist approach, while the EU has adopted an effective model to …

Managing Multiplicity: Consolidating Parallel Arbitration Proceedings For Renewal Energy Disputes, Francesca Pinto

Pepperdine Dispute Resolution Law Journal

The United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, considered the most widely used set of ad hoc rules in international arbitration, do not contain any provisions on consolidating parallel proceedings. Considering the complex, multiparty, and multiple-contract nature of renewable energy investment and development, the UNCITRAL Arbitration Rules should implement consolidation provisions that explicitly address consolidation for related arbitration proceedings and—in some circumstances—enforce consolidation regardless of whether all parties consent. Part II of this article provides an overview of transactions related to the investment, development, and operation of renewable energy projects. Part III identifies the risks of parallel …

Deterrence Defeats Doping: How Arbitration Can Resolve Major League Baseball's Performance-Enhancing Drug Problem, Brice Barnes

Pepperdine Dispute Resolution Law Journal

This article analyzes MLB’s PED policy and proposes amending the policy by arbitrating the agreement to create one that further deters players from using PEDs. The remainder of this article is divided into five parts: Part II discusses the significance of the PED issue and why resolution is necessary; Part III discusses the history of PED use in baseball and the efforts by the League to address it; Part IV proposes the solution of arbitration and explains how the process might work; Part V addresses potential objections to that solution; and finally, Part VI concludes.

Judicial Review Of Teacher-School Board Grievance Arbitration: An Extended Empirical Analysis, Perry A. Zirkel

Arbitration Law Review

In recent years, the overall state law framework for teacher-school board collective bargaining has undergone limited revisions. The basic distribution has been that approximately two-thirds of the state laws authorize collective bargaining for public school teachers, with the remaining state laws either silent or prohibitive. During the past fifteen years, a few states have curtailed or eliminated their applicable laws, with the leading respective examples being Wisconsin and Tennessee, and at least one state, Virginia, shifting in favor of collective bargaining.

The courts have added few direct revisions. The Supreme Court’s ruling that agency shop provisions in public sector collective …

A Muddy Mess: The Supreme Court’S Jurisprudence On Jurisdiction For Arbitration Matters, Kristen M. Blankley

University of Miami Law Review

The Supreme Court’s 2022 Badgerow v. Waters decision at- tempts to create a bright-line rule regarding access to federal courts to hear arbitration matters. On its face, the Badgerow majority opinion reads like a straightforward exercise in textualism. Badgerow interpreted the judicial test for jurisdiction under the Federal Arbitration Act (“FAA”) provision regarding vacatur differently than it interpreted the jurisdictional test for a motion to compel under a different part of the statute. However, Badgerow leaves courts, which were already struggling to decipher the Supreme Court’s 2009 decision of Vaden v. Discover Bank, with a significant number of outstanding questions. …

Pipeline Coordination: The Importance Of Properly Defining An Arbitral Tribunal’S Authority In Gas Price Review Arbitration, Aikaterini (Katerina) Karamousalidou

Pepperdine Dispute Resolution Law Journal

Unprecedented events in international gas commerce have significantly increased gas pricing disputes. International arbitration, as a neutral and binding process, offers a plethora of advantages to international players of the energy industry who are interested in resolving their disputes in an efficient way. However, gas price review is extremely complex. In particular, a gas price review clause is what delineates an arbitrator’s mandate and hence, arbitrators must be prudent to pay careful attention to act within the boundaries of their authority. Failure to do so may result in the award being set aside. This paper addresses: (1) the determination of …

#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. …

Post-Pandemic Finra Arbitration: To Zoom Or Not To Zoom?, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This Article contributes to the literature exploring the impact of the pandemic on arbitration and explores whether parties arbitrating their disputes during the pandemic have had access to justice equivalent to the justice that was available pre-pandemic. Though it is difficult to draw any conclusions about FINRA arbitration due to the confidential and non-reasoned nature of awards, the Article focuses on arbitration of securities industry disputes at one forum, FINRA DRS. In particular, the Article analyzes data about FINRA customer arbitrations over the course of the pandemic, from onset in March 2020 through mid-2022, when most municipalities had lifted COVID-19 …

In Defense Of Moses, Tamar Meshel

St. John's Law Review

(Excerpt)

In 1925, Congress enacted a short statute to make arbitration agreements in maritime transactions and interstate commerce “valid, irrevocable, and enforceable.” Yet the Federal Arbitration Act’s (FAA) simple objective of facilitating the resolution of disputes outside of the courtroom has proven much easier to declare than to implement in practice. In the century since its enactment, the FAA has become a frequently litigated statute and the subject of 59 opinions of the Supreme Court, the majority of which have reversed lower courts’ interpretations of the Act. The Supreme Court’s FAA jurisprudence has not only been abundant but also controversial. …

What’S In The Contract?: Rockefeller, The Hague Service Convention, And Serving Process Abroad, Thomas G. Vanderbeek

Vanderbilt Law Review

Today’s global economy relies on transnational commerce. The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”), implemented in 1965, encouraged transnational commerce by establishing a streamlined mechanism for serving foreign parties with process. More reliable international service methods helped ensure parties that they could resolve disputes with foreign parties through the courts. The Hague Service Convention thus created a bridge between civil and common law procedures on service while reducing some of the risks of engaging in business with foreign parties.

At the same time, the Hague Service Convention frequently …

Unfair By Default: Arbitration's Reverse Default Judgment Problem, Alexi Pfeffer-Gillett

Scholarly Articles

It is a foundational principle of civil law that a defendant who fails to respond to allegations is deemed to have admitted those allegations and can be subjected to default judgment liability. This threat of default judgment incentivizes defendants to respond to claims, thereby discouraging delay tactics and helping ensure cases are resolved efficiently on the merits.

In consumer and employment arbitration, though, the fairness and efficiency benefits of traditional default judgment are flipped, rewarding rather than punishing unresponsive defendants. This difference from civil litigation arises out of arbitration’s fee structures: if a defendant-company fails to pay its share of …

Play On? An Evaluation Of Fifa's Legal Regime And Its Foundation In Alternative Dispute Resolution, Blaine Sanders, J.D. Candidate, 2023

Vanderbilt Journal of Transnational Law

Few associate the Federation Internationale de Football Association, or FIFA, with its legal regime. Rather, and understandably so, sports fans and commentators tend to focus on World Cups, corruption, or even the FIFA video game. Yet, FIFA's role in the sport of soccer extends well beyond what receives the most commercial attention. FIFA shoulders the burden of regulating soccer's member associations, national teams, clubs, players, and countless other personnel through its FIFA Statutes. This is a considerable undertaking, which FIFA achieves through its comprehensive system of alternative dispute resolution.

Soccer is now a global business, largely due to the economic …

The Dischargeability Of Money Judgements Versus Property Interests In Arbitration Awards For Domestic Contributions In The Context Of Unmarried Couples, Gabriella Hansen

Bankruptcy Research Library

(Excerpt)

A debt which arises prior to the filing of the petition for discharge in bankruptcy is dischargeable unless it can be categorized as one of the statutory exceptions to discharge listed in section 523(a) of title 11 of the United States Code (the “Bankruptcy Code”). Section 523(a)(5) of the Bankruptcy Code prohibits the discharge of awards of domestic support due to a debtor’s spouse, former spouse, or child. Accordingly, maintenance, alimony, and child support, often awarded in divorce proceedings, fall under the federal bankruptcy law statutory exceptions to discharge for domestic support obligations.

When an unmarried couple separates and …

Provisional Measures In Aid Of Arbitration, Ronald A. Brand

Articles

The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may secure assets, evidence, or the status quo between parties prior to the completion of the arbitration process. This makes the availability of provisional measures granted by either arbitral tribunals or by courts fundamental to the arbitration. In this Article, I consider the existing legal framework for provisional measures in aid of arbitration, with particular attention to the sources of the rules providing for such measures. Those sources …

Race & International Investment Law: On The Possibility Of Reform And Non-Retrenchment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The international investment regime is in flux. The mainstream practice of investment law and arbitration works on the basis of the regime’s foundations in contract and property law. However, critical scholarship in the field has unearthed the coloniality of power that permeates both the practice of international investment law and the current reform exercise led by the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. These critical scholars warn of the imminent reproduction and entrenchment of the systemic inequities, power asymmetries, and investment law’s investor-state dispute settlement (ISDS) regime which is skewed against post-colonial host states. The …

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 …

Reforming Shareholder Claims In Isds, Julian Arato, Kathleen Claussen, Jaemin Lee, Giovanni Zarra

Articles

ISDS stands alone in empowering shareholders to bring claims for reflective loss (SRL) – meaning claims over harms allegedly inflicted upon the company, but which somehow affect share value. National systems of corporate law and public international law regimes generally bar SRL claims for strong policy reasons bearing on the efficiency and fairness of the corporate form. Though not necessitated by treaty text, nor beneficial in policy terms, ISDS tribunals nevertheless allow shareholders broad and regular access to seek relief for reflective loss. The availability of SRL claims in ISDS ultimately harms States and investors alike, imposing surprise ex post …

Rethinking Absolute Immunity From Defamation Suits In Private Quasi-Judicial Proceedings, Nat Stern

The University of New Hampshire Law Review

No abstract provided.

Arbitration In Securities Exchange Trading Contracts Concluded Between The Financial Intermediary And The Investor In Light Of The Uae Law, Ramzi Madi Dr., Samer Al-Maaytah

مجلة جامعة الإمارات للبحوث القانونية UAEU LAW JOURNAL

With the growing role of financial brokers in securities exchange trading operations in stock markets and their monopoly of buying and selling securities for the account of investors in the financial markets, this has led to the emergence of many disputes between financial brokers and their clients resulting from buying and selling orders for the purpose of concluding trading operations issued by the investor for financial intermediate.

Because of the technical nature of securities exchange trading operations, many countries have sought to find appropriate means to settle such disputes of a special nature, and found that arbitration is one of …

The Arbitration Of Interim Relief In Terms Of Comparative And Emirati Law, Prof. Sayed Mahmoud Ahmed, Mahmoud Fayyad Dr.

مجلة جامعة الإمارات للبحوث القانونية UAEU LAW JOURNAL

The interim protection for legal rights is one of the methods of judicial protection that avoids the risk of delay in the implementation of the law and in providing objective protection for these rights and centers, as well as to preserve them from this risk by taking urgent, temporary or conservative measures by issuing judgments or orders. Therefore, the aim of this research is to answer the following questions: does the arbitrator have the right to consider interim requests to achieve this protection, and if yes what is the legal base of this authority? What are the authorities of the …

Law School News: Omshehe Wins Top National Prize With Securities Regulation Article 11-4-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Arbitral Analytics: How Moneyball Based Litigation/Judicial Analytics Can Be Used To Predict Arbitration Claims And Outcomes, Benjamin Davies

Pepperdine Dispute Resolution Law Journal

This paper reviews, discusses, and advances the field of artificial intelligence in the field of litigation analytics and its application to arbitrations. To better explain the weight an attorney, judge, arbitrator, or the public should have towards artificial intelligence and its utilization in the legal field, this paper reviews current AI publications in the litigation analytics field, historical examples, ethical considerations for analytics, and issues surrounding the accumulation of litigation data. Thereafter, this combined knowledge and experience is applied to Federal Industry Regulatory Authority (FINRA) arbitration awards with a novel AI program designed to scrape, index, and analyze these awards …

Indiana In The Midst Of #Metoo: The Argument For Enforcing Arbitration In Sexual Harassment Claims, Jonathan Cisneros

Pepperdine Dispute Resolution Law Journal

This note argues that it is in the best interest of sexual harassment victims and the state of Indiana to not follow suit in passing legislation that prohibits employers from requiring mandatory arbitration in sexual harassment cases. This is based on an analysis of the potential factors underlying Indiana’s current lack of legislative movement, the weight of the arguments for and against mandatory arbitration, and consideration of the preemption issues surrounding state laws banning mandatory arbitration. Part II sets the foundation for this note by laying out the most pertinent parts of the FAA and analyzing how the U.S. Supreme …

The Paga Saga, Tamar Meshel

Pepperdine Law Review

Employees routinely enter into employment contracts that contain arbitration ‎agreements and prohibit ‎them from bringing class and/or representative actions. These employees may therefore only bring claims against their ‎employers, ‎whether contractual or statutory, in arbitration on an individual basis. Such arbitration agreements and the class/representative action waivers that they contain are enforced nationwide pursuant to the Federal Arbitration Act (FAA). In California, however, a judge-made rule (the Iskanian rule) prohibits the enforcement of representative action waivers found in arbitration agreements with respect to employees’ claims of Labor Code violations under California’s Private Attorney General Act (PAGA). A judicial battle is …

Police Accountability: How Narrowing The Scope Of Arbitration And Limiting Procedural Protections Can Promote Social Trust And Justice, Adrienne Baker

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

No Good Deed Goes Unpunished: Practical Solutions For Police Executives To Reduce The Likelihood Of Disciplinary Action Being Overturned Through Arbitration, Spring Sendele

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

The Illusion Of The Public Policy Exception: Arbitration, Law Enforcement Discipline, And The Need To Reform Minnesota's Approach To The Public Policy Exception, Ben Larson

Mitchell Hamline Law Review

No abstract provided.

Should The Call For Systemic Change Start With Police Grievance Arbitration?, Kate Fredrickson

Mitchell Hamline Law Review

No abstract provided.