Law Commons^™

Anticipatory Deference: What Will Courts Decide And Not Decide Before Enforcing An Agreement To Arbitrate?, George A. Bermann

Faculty Scholarship

The question of deference in international arbitration usually arises when the issue before a decision-maker, be it a tribunal or a court, is one that has already been addressed and ruled upon by another decision-maker over an arbitration’s life-cycle. The salience of this question stems from the fact that international arbitration is a highly iterative and staged process over the course of which different actors are successively confronted with the same issue. This is particularly the case in regard to jurisdictional issues because the authority of a tribunal to entertain a dispute is potentially an issue at all stages.

But …

After First Options: Delegation Run Amok, George A. Bermann

Faculty Scholarship

The proper allocation of authority between courts and arbitral tribunals over the enforceability of agreements to arbitrate has long occupied a central place in U.S. arbitration law, domestic and international alike. From U.S. Supreme Court case law over the years, there has emerged a reasonably well-understood distinction between those issues of enforceability that a court will address if asked by a party to do so and those that it will not. Fundamental to the Court’s jurisprudence is a recognition that some enforceability issues – “gateway issues” – so seriously implicate the consent of parties to arbitrate their disputes that a …

Arbitration In The Roberts Supreme Court, George A. Bermann

Faculty Scholarship

The Supreme Court’s most recent set of arbitration law rulings — Stolt-Nielsen, S.A. v. AnimalFeeds Int’l, Rent-A-Center West v. Jackson, and AT&T Mobility v. Concepcion — merits all the attention it has been receiving. Taken collectively, the three decisions evidence the powerful commitment of a Supreme Court majority to arbitration as an alternative form of dispute resolution — a commitment so strong as to override important consumer welfare interests. At a minimum, the trilogy erects substantial barriers to the conduct of class arbitration, a form of arbitration that consumer advocates regard as essential to protecting consumer welfare.

In …

Ascertaining The Parties' Intentions In Arbitral Design, George A. Bermann

Faculty Scholarship

Supreme Court case law teaches us that the federal interest in arbitration does not consist of enforcing agreements to arbitrate according to some sort of abstract or ideal arbitral model, but rather according to the particular arbitral model upon which the parties had agreed. This body of law is driven by the same notions of party autonomy that underlie the law of arbitration generally. That parties may agree to forego access to national courts in favor of arbitration is an initial manifestation of that attitude. By logical extension, the parties also enjoy extraordinary latitude in determining the features that "their" …