Law Commons^™

The History And The Current Development Of Commercial Arbitration In Kazakhstan, Venera Konussova

Venera Konussova

Kazakhstan has recently been taking steps to a new wave of modernization in order to enter 30 the most developed countries of the world. Such ambitious goal requires not only fast and effective development of all spheres of the economy but also significant improvement of legislation. Revision of legislation in the field of arbitration seeks a twofold goal; to create favorable conditions for the civil rights protection, and to improve the investment climate in particular. In order to obtain this goal, the Draft Law on Arbitration largely reconsidered existing legislation by incorporating progressive regulations, which help to overcome long lasting …

Rescuing Arbitration In The Developing World: The Extraordinary Case Of Georgia, Steven Austermiller

Steven Austermiller

The country of Georgia has a long and interesting history with arbitration. From “telephone justice” to the criminal underworld to legitimacy, Georgian arbitration has survived many iterations. Now, as Georgia begins the EU accession process, it has a new arbitration law that incorporates international norms. This article analyzes the law, explores how arbitration has been implemented thus far, and discusses some of the challenges that remain. Drawing on his U.S. practice experience in arbitration and his work managing legal reform programs in Georgia and other countries, the author recommends some important changes to Georgia’s new arbitration regime. A particular area …

When Peace Is Not The Goal Of A Class Action Settlement, D. Theodore Rave

D. Theodore Rave

On the conventional account, a class action settlement is a vehicle through which the defendant buys peace from the class action lawyer. That single transaction will preclude future litigation by all class members. But peace, at least through preclusion, may not always be the goal. In a recent Fair Credit Reporting Action (FCRA) case, In re Trans Union Privacy Litigation, the parties agreed to a class action settlement that did not preclude individual claims. The 190 million class members surrendered only their rights to participate in a future class or aggregate action; they remained free to march right back into …

“Whimsy Little Contracts” With Unexpected Consequences: An Empirical Analysis Of Consumer Understanding Of Arbitration Agreements, Jeff Sovern

Jeff Sovern

Arbitration clauses have become ubiquitous in consumer contracts. These arbitration clauses require consumers to waive the constitutional right to a civil jury, access to court, and, increasingly, the procedural remedy of class representation. Because those rights cannot be divested without consent, the validity of arbitration agreements rests on the premise of consent. Consumers who do not want to arbitrate or waive their class rights can simply decline to purchase the products or services covered by an arbitration agreement. But the premise of consent is undermined if consumers do not understand the effect on their procedural rights of clicking a box …

At&T V. Concepcion: The Problem Of A False Majority, Lisa Tripp, Evan R. Hanson

Lisa Tripp

The Supreme Court’s 2011 decision in AT&T v. Concepcion is the first case where the Supreme Court explores the interplay between state law unconscionability doctrine and the vast preemptive power of the Federal Arbitration Act (FAA). Although it is considered by many to be a landmark decision which has the potential for greatly expanding the already impressive preemptive power of the FAA, something is amiss with Concepcion.

AT&T v. Concepcion is ostensibly a 5-4 majority decision with a concurring opinion. However, the differences in the majority and concurring opinions are so profound that it appears that Justice Thomas actually …

Arbitral Autonomy, Liaquat Ali Khan

Ali Khan

This Article presents concrete proposals to amend the current arbitration law for minimizing court intervention into arbitration proceedings and enforcement of arbitral awards. As a method of dispute resolution, arbitration offers an alternative to litigation. Yet arbitration is frequently interspersed with litigation. As a true alternative, arbitration should be, and can be, autonomous, that is, litigation-free. Arbitral autonomy fails when parties go to court to challenge validity of the arbitration agreement, to obtain emergency relief, or to contest enforceability of the award, among other reasons. To accomplish litigation-free arbitration, first, the need to go to court must be minimized; second, …