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Full-Text Articles in Law
Unwaivable: Public Enforcement Claims And Mandatory Arbitration, Myriam E. Gilles, Gary Friedman
Unwaivable: Public Enforcement Claims And Mandatory Arbitration, Myriam E. Gilles, Gary Friedman
Faculty Articles
This essay, written for a conference on the “pathways and hurdles” that lie ahead in consumer litigation, is the first to examine the implications of California’s recent jurisprudence holding public enforcement claims unwaivable in standard-form contracts of adhesion, and the inevitable clash with the U.S. Supreme Court’s decisional law interpreting the Federal Arbitration Act. With its rich history of rebuffing efforts to deprive citizens of public rights through private contract, California provides an ideal laboratory for exploring this escalating conflict.
Confessions And Redemption—And Politics—For An Un-Neutral Person Who Mediates, Marjorie Corman Aaron
Confessions And Redemption—And Politics—For An Un-Neutral Person Who Mediates, Marjorie Corman Aaron
Faculty Articles and Other Publications
Within ADR’s house, and now in our arbitration and mediation rooms, we mediators, court ADR administrators, process designers,and arbitrators can construct and conduct processes that reflect moral values our law makers seem to have abandoned.
Why And How Users Make Choices In International Dispute Resolution: 2020 Sidra Survey, Nadja Alexander, Allison Goh
Why And How Users Make Choices In International Dispute Resolution: 2020 Sidra Survey, Nadja Alexander, Allison Goh
Research Collection Yong Pung How School Of Law
In this post on the Kluwer Mediation Blog, the experiences and views of legal and client users from common and civil law jurisdictions on why and how they choose dispute resolution mechanisms to resolve cross-border disputes are analysed.
Tax And Arbitration, William W. Park
Tax And Arbitration, William W. Park
Faculty Scholarship
When fiscal measures intertwine arbitration, undue mystification sometimes follows. To enhance analytic clarity, tax-related arbitration might be divided into three parts. The first derives from ordinary commercial disputes that become laced with incidental tax questions. A corporate acquisition, for example, might carry tax consequences which in turn implicate contract claims or defences presented to an arbitral tribunal for resolution. The second genre of tax-related arbitration arises in respect of cross-border investment disputes. Rightly or wrongly, foreign investors often perceive host-country fiscal enactments as discriminatory, unfair, or tantamount to expropriation, thus violating international commitments. Finally, arbitration comes into play under income …
Making Employment Arbitration Fair And Accessible, Theodore J. St. Antoine
Making Employment Arbitration Fair And Accessible, Theodore J. St. Antoine
Articles
Mandatory arbitration agreements require employees, as a condition of employment, to agree to arbitrate all employment disputes instead of filing court suits. The Supreme Court has approved such agreements but many labor experts oppose them. The U.S. House of Representatives has passed a bill to prohibit pre-dispute agreements, the common form for mandatory arbitrations. This article argues that the House bill would have the practical effect of virtually eliminating employment arbitration. Instead, proposals are presented for either legislative or judicial steps to ensure that employment arbitration is fair and accessible. Requirements would include: (1) voluntary agreements on the part of …
Arbitration Archetypes For Enhancing Access To Justice, Jill I. Gross
Arbitration Archetypes For Enhancing Access To Justice, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
In the second half of the twentieth century, the use of arbitration proliferated in the United States as part of a greater alternative dispute resolution (ADR) movement, with the promise that using ADR processes would, among other things, enhance disputants' access to justice. Arbitration offers disputing parties a process to resolve their dispute, which, at least in theory, is known for decreased cost, increased speed, party control, privacy, and finality. These characteristics generally enhance parties' access to justice because, as compared to litigation, barriers to entry are lower, outcomes are delivered more quickly, substantive outcomes are more equitable, and parties …
The New Qui Tam: A Model For The Enforcement Of Group Rights In A Hostile Era, Myriam E. Gilles, Gary Friedman
The New Qui Tam: A Model For The Enforcement Of Group Rights In A Hostile Era, Myriam E. Gilles, Gary Friedman
Faculty Articles
The present Administration has made clear it has no interest in enforcing statutes designed to protect workers, consumers, voters, and others. And, as we have chronicled in prior work, the ability of private litigants to enforce these laws has been undercut by developments in the case law concerning class actions—particularly class-banning arbitration clauses. As these critical enforcement methods recede, will alternative methods of prosecuting claims arise? How might they work? Are they politically and fiscally sustainable? We focus here on a promising approach just now coming into view: qui tam legislation authorizing private citizens to bring representative claims on behalf …
Arbitration Of Worker Contracts: New Prime's Proper Statutory Interpretation Of The 1925 Federal Arbitration Act, Margaret L. Moses
Arbitration Of Worker Contracts: New Prime's Proper Statutory Interpretation Of The 1925 Federal Arbitration Act, Margaret L. Moses
Faculty Publications & Other Works
In 1925, the Congress that adopted the Federal Arbitration Act did not intend for it to cover any workers’ contracts. However, this changed dramatically when the Supreme Court determined in Circuit City Stores, Inc. v. Adams (2001) that all workers’ contracts were covered except for transportation workers. Thus, today, thousands of workers are forced into adhesion contracts requiring arbitration. However, the recent unanimous decision of the Supreme Court in New Prime v. Oliveira unequivocally declares that the proper way to interpret the Act is to give it the meaning it had when Congress enacted the statute. This very reasonable conclusion …
Making Sense Of The Arbitrator’S Ruling In Ds 316 Ec And Certain Member States – Measures Affecting Trade In Large Civil Aircraft (Article 22.6-Ec): A Jigsaw Puzzle With (At Least) A Couple Missing Pieces, Petros C. Mavroidis, Kamal Saggi
Making Sense Of The Arbitrator’S Ruling In Ds 316 Ec And Certain Member States – Measures Affecting Trade In Large Civil Aircraft (Article 22.6-Ec): A Jigsaw Puzzle With (At Least) A Couple Missing Pieces, Petros C. Mavroidis, Kamal Saggi
Faculty Scholarship
“The U.S. won a $7.5 Billion award from the World Trade Organization against the European Union, who has for many years treated the USA very badly on Trade due to Tariffs, Trade Barriers, and more. This case going on for years, a nice victory”, tweeted President Trump’s on October 3, 2019. The United States (US) won not only the highest amount of retaliation ever adjudicated in the history of the WTO but also an ongoing right to retaliate on an annual basis until such time as the EU had complied by either removing the subsidies it granted Airbus or somehow …
The Final Frontier: Are Class Action Waivers In Broker-Dealer Employment Agreements Enforceable?, Jill I. Gross
The Final Frontier: Are Class Action Waivers In Broker-Dealer Employment Agreements Enforceable?, Jill I. Gross
Elisabeth Haub School of Law Faculty Publications
How would a court resolve a broker-dealer's action to enforce its class action waiver, which would require the court to disregard FINRA Rule 13204? The Supreme Court has identified one exception to the FAA's mandate: if a “contrary congressional command” displaces the FAA. Thus far, the Court has not had occasion to examine whether a class action waiver in a broker-dealer's employment agreement with an employee is enforceable under this exception. While the Court seems very supportive of these waivers, the securities industry is different. Securities arbitration is heavily regulated, and pronouncements by the SEC--when exercising power expressly delegated to …