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Full-Text Articles in Law
The Use Of Arbitration Clauses By Social Media Websites: A Critique, Kavya Jha, Ananya Singh
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
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
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.
Pipeline Coordination: The Importance Of Properly Defining An Arbitral Tribunal’S Authority In Gas Price Review Arbitration, Aikaterini (Katerina) Karamousalidou
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 …
Arbitral Analytics: How Moneyball Based Litigation/Judicial Analytics Can Be Used To Predict Arbitration Claims And Outcomes, Benjamin Davies
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
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
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 …
Private Juries Within The Arbitration Framework: A Third Path In Dispute Resolution, Lionel M. Schooler, Luke Gilman
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
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 …
The Negotiation Tactics Of Nelson Mandela, Christian Parham
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.
Employment Arbitration Agreements: The Case For Ethical Standards For Dispute Resolution System Designers, Michael L. Russell
Employment Arbitration Agreements: The Case For Ethical Standards For Dispute Resolution System Designers, Michael L. Russell
Pepperdine Dispute Resolution Law Journal
Dispute resolution design is an emerging field, both academically and professionally. Attorneys, mediators, and arbitrators, the other roles in the alternative dispute resolution process, have codes of ethics which guide their conduct. Dispute resolution designers, however, have no such guidelines. This article uses the example of mandatory arbitration agreements in the employment context to illustrate why this lack of ethical guidelines for dispute resolutions designers is problematic. In recent years, mandatory arbitration agreements significantly impacted employment law and litigation. The two most problematic provisions that often appear in mandatory arbitration agreements in the workplace context are cost sharing provisions and …
Level The Playing Field: Advocating For The Removal Of Major League Baseball’S Prohibition On The Admissibility Of Statcast-Generated Sabermetrics As Evidence In Salary Arbitration Hearings, Christian Podest
Pepperdine Dispute Resolution Law Journal
This paper argues that Major League Baseball should amend its Collective Bargaining Agreement (CBA) to remove the outright ban on certain types of statistical evidence to help prove a player’s value. First, the paper briefly describes the history of the compensation system in the MLB and its evolution. Then, it details how final offer arbitration became the default mechanism for resolving compensation disputes between teams and players. The paper subsequently focuses on the Collective Bargaining Agreement’s carve-out of statistical evidence and notes the similarities and differences between Major League Baseball’s evidentiary standards governing salary arbitration hearings and the Federal Rules …
In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor
In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor
Pepperdine Dispute Resolution Law Journal
No abstract provided.
Blending Scripture And The Law: The Lack Of Christian Law And The Dangers It Presents In Christian Arbitration, Emily Holland
Blending Scripture And The Law: The Lack Of Christian Law And The Dangers It Presents In Christian Arbitration, Emily Holland
Pepperdine Dispute Resolution Law Journal
This paper will examine the ways in which a lack of an established substantive law within the Christian faith tradition affects the Christian arbitration process and explore the possible means to address these issues. It will outline the history and functions of Christian tribunals, highlighting the unique space within the justice system that these special tribunals fill. Next, it will discuss the differences between the application of law in tribunals of other religious faith traditions and the application of law in Christian arbitration. This paper will demonstrate how a lack of concrete and applicable law creates issues in the enforceability …
In God We Trust (Unless We Change Our Mind): How State Of Mind Relates To Religious Arbitration, Skylar Reese Croy
In God We Trust (Unless We Change Our Mind): How State Of Mind Relates To Religious Arbitration, Skylar Reese Croy
Pepperdine Dispute Resolution Law Journal
Arguably, binding religious arbitration agreements are constitutionally problematic because they hinder freedom of religion: They inhibit parties’ ability to change their beliefs. However, religious arbitration agreements also offer an outlet for the religiously inclined to further practice their beliefs. This Article offers a middle ground: If a party to a religious arbitration agreement changes religion, he or she can claim a “conscientious objector” status if he or she can prove the agreement violates his or her sincerely held religious beliefs. Courts are allowed to inquire into the sincerity of a person’s religious beliefs. The religious question doctrine — which restricts …
Compelling Parties To Mediate Investor-State Disputes: No Pressure, No Diamonds?, James M. Claxton
Compelling Parties To Mediate Investor-State Disputes: No Pressure, No Diamonds?, James M. Claxton
Pepperdine Dispute Resolution Law Journal
There was nothing preordained about arbitration becoming shorthand for investor-state dispute settlement. The ICSID system was built on the assumption that disputing parties would choose conciliation to settle their disputes. Those expectations went unrealized as arbitration rose to prominence, and since that time institutions, parties, and academics have observed that facilitated negotiation could play a greater role in resolving investor-state disputes. A number of domestic court systems have made mediation part of the fabric of dispute resolution through incentives and compulsions to mediate. Drawing on this experience, this manuscript considers how obstacles to the uptake of investor-state mediation might be …
Aging Out Arbitration For Wrongful Death Suits In Nursing Homes, Courtney Dyer
Aging Out Arbitration For Wrongful Death Suits In Nursing Homes, Courtney Dyer
Pepperdine Dispute Resolution Law Journal
The first section of this article will discuss the significance of removing arbitration agreements from wrongful death claims and implementing mediation instead. The second section will detail the background of arbitration clauses in nursing homes. The third section will review state acts that have opposed the use of arbitration agreements for wrongful death claims in nursing homes. The fourth section will analyze cases that have challenged arbitration agreements in nursing homes for wrongful death claims. The fifth section will propose compulsory mediation and multi-tiered dispute resolution clauses as substitutes for arbitration clauses. Finally, the sixth section will consider potential objections …
Foreign Arbitral Awards And The Second Circuit: Enforcement Considerations For Annulments, Calvin Jonker
Foreign Arbitral Awards And The Second Circuit: Enforcement Considerations For Annulments, Calvin Jonker
The Journal of Business, Entrepreneurship & the Law
Many international business transactions integrate an arbitration clause into the agreement as companies choose to keep potential disputes out of the court systems. Enforcement of the awards rendered pursuant to such agreements is straightforward in the United States thanks to the Federal Arbitration Act, as long as the United States is the forum for the arbitration proceeding. Even if the forum is outside of U.S. jurisdiction, several treaties, namely the Panama Convention and the New York Convention, provide for recognition of a foreign arbitrated award by U.S. courts, as well as recognition by U.S. courts of any annulment or suspension …
Arbitration And Mediation In Cross Border Disputes: Possibilities And Limitations, Young Hye Chun
Arbitration And Mediation In Cross Border Disputes: Possibilities And Limitations, Young Hye Chun
Pepperdine Dispute Resolution Law Journal
No abstract provided.
Consenting To Counterclaims Under The Icsid Convention, Harshad Pathak
Consenting To Counterclaims Under The Icsid Convention, Harshad Pathak
Pepperdine Dispute Resolution Law Journal
Counterclaims in investment treaty arbitration hold immense significance. Counterclaims have the potential to nullify biases and bolster the confidence of States in investment treaty arbitration. That being said, the multitude of jurisdictional hurdles faced by counterclaims under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) risk dampening the aforementioned potential. It is two of these hurdles emanating from the consensual nature of arbitration that I address herein. Part II of this article commences by analyzing the provisions of the ICSID Convention to derive the prerequisites of a valid counterclaim in investment …
Arbitration In Internal Dispute Resolution Programs: The Scarlet Letter “A” In Sexual Harassment Claims, Sarah Sachs
Arbitration In Internal Dispute Resolution Programs: The Scarlet Letter “A” In Sexual Harassment Claims, Sarah Sachs
Pepperdine Dispute Resolution Law Journal
This Comment evaluates the use of arbitration and mediation as effective alternative dispute resolution mechanisms for resolving workplace sexual harassment claims. Part II discusses the legal development of sexual harassment claims in the workplace. Part III evaluates companies who use internal dispute resolution programs with mediation and arbitration to resolve workplace harassment claims. Finally, Part IV analyzes the advantages and disadvantages of companies designing and implementing internal dispute resolution programs to adjudicate workplace sexual harassment claims.
Houston, We Have An Arbitration: International Arbitration’S Role In Resolving Commercial Aerospace Disputes, Carson W. Bennett
Houston, We Have An Arbitration: International Arbitration’S Role In Resolving Commercial Aerospace Disputes, Carson W. Bennett
Pepperdine Dispute Resolution Law Journal
This article explores the complimentary nature between the burgeoning private aerospace industry and international arbitration, as well as detailing how it could be advantageous to resolve these aerospace disputes in California. Part II outlines the new space race. It begins with the Ansari XPrize and follows some of the industry’s most significant developments. Part III explores the benefits of arbitration and how the characteristics of international arbitral proceedings cater to the common concerns of aerospace companies. Part IV catalogues the initiatives arbitral institutions have taken to customize an arbitration for aerospace disputes. This article argues that a specialized institution could …
Consumer Arbitrations In The European Union, Andreas Von Goldbeck
Consumer Arbitrations In The European Union, Andreas Von Goldbeck
Pepperdine Dispute Resolution Law Journal
The main argument of this paper is that the law should generally enforce pre-dispute consumer arbitration clauses. If the consumer is given a choice between litigation and arbitration at the time of contracting and she chooses arbitration, that choice should generally be enforceable, provided appropriate safeguards are in place guaranteeing access to justice. Consumer protection comes at a cost, which the consumer ultimately pays in the price of the product or service purchased: assuming arbitration is the more cost-efficient dispute-resolution mechanism, consumers choosing arbitration would, in theory, pay a lower price than those choosing litigation. The blanket hostility towards pre-dispute …
Arbitration. A Promising Avenue For Resolving Family Law Cases?, Audrey J. Beeson
Arbitration. A Promising Avenue For Resolving Family Law Cases?, Audrey J. Beeson
Pepperdine Dispute Resolution Law Journal
This paper will examine the path of arbitration in the area of family law, when it began, and how it has grown since 1990. It will discuss the division between the states that currently utilize arbitration for family law issues as well as the scope of judicial review. The paper will then discuss the history leading to, and the enactment of, the Uniform Family Law Arbitration Act. Next, it addresses Nevada’s legislative history, when arbitration of family law matters was considered, and consequently what a Nevada Family Law Arbitration Act would potentially look like. Finally, it will include a view …
The Possibility Of Using Alternative Dispute Resolution For Election Law Disputes, Jessica Becerra
The Possibility Of Using Alternative Dispute Resolution For Election Law Disputes, Jessica Becerra
Pepperdine Dispute Resolution Law Journal
This article looks at the positive effects that ADR can have in resolving election law disputes before, during, and after elections. First, this article will focus on the significance of implementing ADR processes in resolving election law disputes. Next, this article will explain the background and impact that election law disputes have on voters, candidates, and the election process as a whole. This article will then explore why ADR processes should be implemented as opposed to using litigation to resolve election law disputes. After, this article will explain a proposed solution to resolving election law disputes through mediation or arbitration …
The Path Towards Defining “Investment” In Icsid Investor-State Arbitrations: The Open-Ended Approach, Melissa María Valdez García
The Path Towards Defining “Investment” In Icsid Investor-State Arbitrations: The Open-Ended Approach, Melissa María Valdez García
Pepperdine Dispute Resolution Law Journal
Article 25 of the International Convention on the Settlement of Investment Disputes left the notion of “investment” intentionally undefined, thus leaving its interpretation in the hands of arbitration tribunals, which has led to inconsistencies, confusion and debate regarding the true essence of what may appear as a routine concept. This article tries to explain that the proper meaning of “investment” under the Convention must be clarified not only by discussing the drafting history of the Convention, but by also examining doctrinal tendencies, key aspects of corresponding arbitration awards and customary international law and argues that arbitration tribunals should show strong …
Arbitration And Protection Under The Un Convention Against Torture And Other Cruel, Inhuman, Degrading Treatment, Or Punishment, Nicole M. Hogan
Arbitration And Protection Under The Un Convention Against Torture And Other Cruel, Inhuman, Degrading Treatment, Or Punishment, Nicole M. Hogan
Pepperdine Dispute Resolution Law Journal
This article will discuss the UN Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention”), and how arbitration can be used to best serve victims who were subjected to treatment that is prohibited under the Convention. Part II will give a background on the Convention. Part III will introduce the arbitration provision that is included in Article 30 of the Convention, which is important to the foundation of this article. Additionally, this section will discuss how arbitration works as an Alternative Dispute Resolution procedure, and will highlight some of the benefits of arbitration over litigation. Part …
Uber Hitches A Ride With Arbitration: How Pro-Arbitration Attitudes And Uber Will Prevail In California And The Ninth Circuit, Neil Eddington
Uber Hitches A Ride With Arbitration: How Pro-Arbitration Attitudes And Uber Will Prevail In California And The Ninth Circuit, Neil Eddington
Pepperdine Dispute Resolution Law Journal
Part I of this article will introduce Uber and describe how the sharing economy functions. This section will explain Uber’s current conflict with their drivers regarding arbitration agreements and why the stakes are so high. Part II will explore the FAA—its history, original legislative intent and purpose—in order to provide a baseline from which to contrast its current broad application. Part III will highlight Supreme Court jurisprudence on arbitration to illustrate how the FAA is now expansively interpreted contrary to its original limited scope. This Part will culminate in an examination of the Concepcion and American Express majority and dissenting …
The Need For Implementation Of A Consolidation Provision In Institutional Arbitration Rules, Ioannis Giakoumelos
The Need For Implementation Of A Consolidation Provision In Institutional Arbitration Rules, Ioannis Giakoumelos
Pepperdine Dispute Resolution Law Journal
This article deals with the question whether arbitration institutions should introduce a consolidation provision in their respective rules, and if so, under what conditions consolidation should be ordered. It stresses the general advantages and potential disadvantages which consolidation may have. It further investigates whether the parties’ interests regarding consolidation are sufficiently respected in the absence of an express consolidation rule. In this regard, it argues that interpretation of arbitration agreements can have a detrimental outcome, and therefore, the introduction of a consolidation provision in institutional rules is recommended. The article goes on to compare various consolidation provisions of different arbitration …
Resolving Time Sensitive Construction Disputes: Are Attorneys Just Getting In The Way?, Jeremy Winter
Resolving Time Sensitive Construction Disputes: Are Attorneys Just Getting In The Way?, Jeremy Winter
Pepperdine Dispute Resolution Law Journal
In addition to promoting the usage of other compelling dispute resolution alternatives such as dispute review boards, this Article advances the argument for marginalizing the over-involvement of and dependence upon zealous adversarial attorneys when attempting to resolve time sensitive construction disputes. More specifically, the remainder of this Article is divided into four main sections. Part II will introduce the construction industry's transactional system through the lens of principal construction professionals, examine the different types of construction contracts, and outline some common time sensitive construction disputes. Part III will provide an overview of alternative dispute resolution's rich connection to the construction …