Law Commons^™

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. …

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 …

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 …

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 …

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 …

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.

Structural Barriers To Inclusion In Arbitrator Pools, Nicole G. Iannarone

Washington Law Review

Critics increasingly challenge mandatory arbitration because the pools from which decisionmakers are selected are neither diverse nor inclusive. Evaluating diversity and inclusion in arbitrator pools is difficult due to the black box nature of mandatory arbitration. This Article evaluates inclusion in arbitrator pools through a case study on securities arbitration. The Article relies upon the relatively greater transparency of the Financial Industry Regulatory Authority (FINRA) forum. It begins by describing the unique role that small claims securities arbitration plays in maintaining investor trust and confidence in the securities markets before describing why ensuring that the FINRA arbitrator pool is both …

Arbitrating Security Class Actions: The Limits Of Forum Selection Bylaws, Paul Schochet

St. John's Law Review

No abstract provided.

Capitalization Of The Global Green Economy: An Analysis Of South Carolina's Current Foreign Direct Investment Efforts And Suggestions For Continued Sustainability, William E. Hilger

South Carolina Law Review

No abstract provided.

Private Juries Within The Arbitration Framework: A Third Path In Dispute Resolution, Lionel M. Schooler, Luke Gilman

Pepperdine Dispute Resolution Law Journal

In the context of a global pandemic and a resulting backlog of jury trials in the United States court system, this article explores the potential for employing a private jury system within existing arbitration law to provide a third path for parties seeking an expedient resolution of disputes by juries when impediments exist to jury trial in court. After an introduction and background on the current state of the global SARS-CoV-2 pandemic and its effect on court backlogs, we outline the law applicable to private jury proceedings, including (a) whether an arbitral award predicated on a private jury determination is …

Arbitration With Government, Jack I. Garvey

Pepperdine Dispute Resolution Law Journal

Arbitration is today increasingly dominant in the affairs of government. As a principal means of alternative dispute resolution, the utility of arbitration has brought it far beyond the confines of private law. The expanding role of arbitration is now broadly evident in agreements with governments and governmental entities at state and federal levels, and in international agreements involving governments. The question this poses for the lawyer working for government, or private parties contractually bound to arbitrate with government, is whether the adoption of arbitration for disputes involving government constitutes a fundamental shift of dynamics requiring a strategic shift in perspective …

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

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 In Urgent Matters In Light Of The Comparative And The Uae Laws, Prof. Sayed Mahmoud Ahmed, Dr. Mahmoud Fayyad

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 …

Mobile-Based Transportation Companies, Mandatory Arbitration, And The Americans With Disabilities Act, Tamar Meshel

Journal of Law and Mobility

Uber, Lyft, DoorDash and similar mobile-based transportation network companies (TNCs) have been involved in numerous legal battles in multiple jurisdictions. One contested issue concerns whether TNC drivers are employees or independent contractors. Uber recently lost this battle to some extent in the UK, but won it in California. Another issue concerns the TNCs’ use of mandatory (pre-dispute) arbitration clauses in their standard form service agreements with both drivers and passengers. These arbitration clauses purport to obligate such future plaintiffs to resolve any dispute with the defendant TNC outside of court and, typically, on an individual rather than a class basis. …

The Negotiation Tactics Of Nelson Mandela, Christian Parham

Global Tides

Nelson Mandela is known across the world for his extraordinary peacemaking skills. This paper examines the negotiation tactics Nelson Mandela used to bring unity to South Africa. It begins with examining his childhood and young adult years to highlight the development of his skills, and then provides a comprehensive review of the negotiations he participated in. It explores the effectiveness of each one and describes lessons that can be received. In so doing, it provides an evaluation of his tactics and concludes with how these lessons can be applied in light of current societal issues.