Law Commons^™

Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy

Michael H LeRoy

Judicial review of arbitration awards is highly deferential, but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed awards. Nearly the same result was observed for a sub-sample of 44 employment discrimination awards under Title VII. By comparison, federal appeals courts in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.

Why are the rulings of Article III judges scrutinized more than the awards of citizen-arbitrators? What does this mean when companies can avoid Article III court rulings by …

The Tower Of Bazzle: Why Due Process Requires A Hybrid Model Of Classwide Arbitration, Zachary Allen

Zachary Allen

During the late 1970s the United States witnessed the beginning of an uncomfortable courtship between two powerful dispute resolution mechanisms: arbitration and the class action. In 2003, the U.S. Supreme Court announced its approval of their marriage, referred to as classwide arbitration, in Green Tree Financial Corporation v. Bazzle. In Bazzle, the Court held that where an arbitration agreement is silent regarding classwide arbitration, the arbitrator—not the court—should interpret the agreement to determine whether it permits classwide arbitration.

Unfortunately, the Court’s blessing was mixed. Bazzle is on infirm ground for two reasons. First, the Court could only muster a 4-1-4 …

Natura Contrattuale O Processuale Dell'arbitrato Irrituale?, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

State Consent, Investor Interests And The Future Of Investment Arbitration: Reanalyzing The Jurisdiction Of Investor-State Tribunals In Hard Cases, Paul M. Blyschak

Paul M Blyschak

While the international investment regime has enjoyed an extended period of enthusiastic subscription, this euphoria has begun to recede in some quarters. Although sovereign consent to waive immunity is at the heart of investor-State arbitration, many states feel that this consent has been illegitimately expanded. In this regard, this thesis examines the degree to which the interpretive approach taken to state consent to arbitration can affect whether an investment tribunal will assert jurisdiction over an investment dispute. Investor-State tribunals often confront ‘hard cases’ where their authority to decide a dispute is vigorously contested by respondent host states. This thesis examines …

State Consent, Investor Interests And The Future Of Investment Arbitration: Reanalyzing The Jurisdiction Of Investor-State Tribunals In Hard Cases, Paul M. Blyschak

Paul M Blyschak

While the international investment regime has enjoyed an extended period of enthusiastic subscription, this euphoria has begun to recede in some quarters. Although sovereign consent to waive immunity is at the heart of investor-State arbitration, many states feel that this consent has been illegitimately expanded. In this regard, this thesis examines the degree to which the interpretive approach taken to state consent to arbitration can affect whether an investment tribunal will assert jurisdiction over an investment dispute. Investor-State tribunals often confront ‘hard cases’ where their authority to decide a dispute is vigorously contested by respondent host states. This thesis examines …

Should Parties’ Disclosure Requirements For Arbitrators Be Honored By Courts: Positivesoftware Solutions, Inc. V. New Century Mortgage Corporation, Leonard E. Gross, Howard L. Wieder

Leonard E. Gross

In this article, we criticize the decision of the Fifth Circuit Court of Appeals in PositiveSoftware Solutions, Inc. v. New Century Mortgage Corporation. In PositiveSoftware, the court confirmed an arbitration award even though the arbitrator had failed to disclose rather significant facts about his relationship to one of the parties. Our thesis is that courts should enforce the arbitrator disclosure requirements to which the parties have agreed by not confirming arbitration awards when arbitrators fail to comply with those disclosure requirements. In adopting the Federal Arbitration Act, Congress intended to encourage the use of arbitration. The net effect of refusing …

Why Arbitrate? The Questionable Quest For Efficiency In Hallstreet Street Associates, Llc V. Mattel, Inc., 550 U.S. __ (2008), David K. Kessler

David K Kessler

The Federal Arbitration Act (FAA) makes arbitration agreements between private parties legally enforceable. The policy favoring arbitration underlying the FAA has been justified as serving two ends: it protects freedom of contract, and it creates an efficient alternative dispute resolution system. Previous decisions by the Court have indicated a belief that, when those two goals come into conflict, the result that preserves freedom of contract should prevail. In Hallstreet Associates, L.L.C. v. Mattel, Inc., however, a recent case involving the Federal Arbitration Act, the Court's decision preserved perceived efficiency at the expense of freedom of contract. The Court held that …

Why Arbitrate? The Questionable Quest For Efficiency In Hallstreet Street Associates, Llc V. Mattel, Inc., David K. Kessler

David K Kessler

The Federal Arbitration Act (“FAA”) makes arbitration agreements between private parties legally enforceable. The policy favoring arbitration underlying the FAA has been justified as serving two ends: it protects freedom of contract, and it creates an efficient alternative dispute resolution system. Previous decisions by the Court have indicated a belief that, when those two goals come into conflict, the result that preserves freedom of contract should prevail. In Hallstreet Associates, L.L.C. v. Mattel, Inc., however, a recent case involving the Federal Arbitration Act, the Court’s decision preserved perceived efficiency at the expense of freedom of contract. The Court held that …

Looking Into A Crystal Ball: Courts' Inevitable Refusal To Enforce Parties' Contracts To Expand Judicial Review Of Non-Domestic Arbitral Awards, Eric S. Chafetz

Eric S. Chafetz

Courts have not addressed whether parties can contract to expand the judicial review provisions in Article (“Art.”) V of the New York Convention (the "NY Convention"). When courts do address the issue, they will rely on the resolution of two prior issues: (1) whether parties can rely on the vacatur provisions in Art. 1 of the Federal Arbitration Act (“FAA”), in a vacatur proceeding under the NY Convention and (2) whether parties can rely on manifest disregard of the law and other grounds of review implied under Art. 1 of the FAA, in a vacatur proceeding under the NY Convention. …

A Strategic Functionalist Approach To International Commercial Mediation, Antonin I. Pribetic

Antonin I. Pribetic

Mediation in the international context is a relatively recent phenomenon. As an Alternative Dispute Resolution (ADR) mechanism, third-party neutral mediation is firmly entrenched in the legal ethos and procedural rules of most common law jurisdictions; such as the United Kingdom, the United States and Canada. However, in the rest of the world, including many European, Latin American and Asian nations with civil law traditions, mediation remains an elusive concept. Some commentators suggest this may be due in part to differences in systemic (i.e. adversarial vs. inquisitorial) and cultural (i.e. mediation vs. conciliation) orientations.

This paper considers whether International Mediation is …

International Commercial Arbitration In Cuba, Kevin S. Tuininga

Kevin S Tuininga

This article discusses the prospect of international commercial arbitration in Cuba.

Risoluzione Di Contrasti Sulla Gestione Di Società, Arbitraggio E Modelli Di Amministrazione, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

Ensuring Enforceability & Fairness In The Arbitration Of Employment Disputes, Stacy A. Hickox

Stacy A. Hickox

Private arbitration of employment law claims has become common in recent years. The Supreme Court has shown a strong preference for requiring that an employee pursue an employment claim through an arbitration program rather than seeking to enforce his or her rights in court. At the same time, legislation has been introduced to try to protect the rights of employees who, without an arbitration program in place, would have the opportunity to assert their statutory rights in court. This article explores what safeguards should be in place to assure that employers can rely on the enforceability of an arbitration program …

Chronicles Of A Failure: From A Renegotiation Clause To Arbitration Of Transnational Contracts, Luigi Russi

ILSU Working Paper Series

The present paper recounts the various steps which parties to a transnational contract containing a renegotiation clause may need to go through, should the circumstances accounted for in the renegotiation clause come to existence. To this end, the article sets off from an outline of the most relevant structural features and functions of renegotiation clauses, and of the typical obligations which may derive therefrom.

Secondly, the paper's focus narrows down to the - by no means infrequent - case of failure to renegotiate in presence of an arbitration clause governing the parties' agreement. In the latter case, in particular, several …

Compelling Mediation In The Context Of Med-Arb Agreements, Sean-Patrick Wilson, David J. Mclean

Sean-Patrick Wilson

The recent case of Advanced Bodycare v. Thione, 07-12309, 2008 U.S. App. LEXIS 8584 (11th Cir. Apr. 21, 2008) invited the Eleventh Circuit to explore which types of ADR are considered “arbitration” for purpose of the Federal Arbitration Act, 9 U.S.C. § 1 (“FAA”). According to the Eleventh Circuit, an agreement to mediate, as well as an agreement to either mediate or arbitrate, falls outside of the FAA’s scope, making the FAA’s remedies unavailing to parties wishing to use its provisions to stay litigation or to compel a single agreement which requires the parties to either mediate or arbitrate. The …

Chronicles Of A Failure: From A Renegotiation Clause To Arbitration Of Transnational Contracts, Luigi Russi

Bocconi Legal Papers

The present paper recounts the various steps which parties to a transnational contract containing a renegotiation clause may need to go through, should the circumstances accounted for in the renegotiation clause come to existence. To this end, the article sets off from an outline of the most relevant structural features and functions of renegotiation clauses, and of the typical obligations which may derive therefrom.

Secondly, the paper's focus narrows down to the - by no means infrequent - case of failure to renegotiate in presence of an arbitration clause governing the parties' agreement. In the latter case, in particular, several …