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Full-Text Articles in Law
Sharia Law And International Commercial Arbitration: The Need For An Intra-Islamic Arbitral Institution, George Khoukaz
Sharia Law And International Commercial Arbitration: The Need For An Intra-Islamic Arbitral Institution, George Khoukaz
Journal of Dispute Resolution
The goal of this Comment is to address the relationship between Middle-Eastern Islamic countries with the rest of the world from an international commercial arbitration perspective. To do that, we will first briefly address the historic sectarian divide between the two main sects in Islam—Sunna and Shia—which will allow the reader to gain a better understanding of the theoretical differences within Islam, resulting in different legal systems and competing political interests. Section II will also briefly address the modern history of both the Kingdom of Saudi Arabia (KSA) and the Islamic Republic of Iran (Iran) because these two countries are …
Arbitration Clause Issues In Sharing Economy Contracts, Carissa Laughlin
Arbitration Clause Issues In Sharing Economy Contracts, Carissa Laughlin
Journal of Dispute Resolution
This Comment will explicate the successes and failures of sharing economy arbitration clauses, and discuss the future legal climate for companies like Airbnb and Uber. First, this Comment will give an overview of the sharing economy and its current legal implications, then it will provide an overview of arbitration clauses and their success in sharing economy contract agreements, and finally, it will evaluate the potential advantages and disadvantages of arbitration clauses in the future based on a current labor and employment suits pending against Uber.
Arbitration For The “Afflicted” — The Viability Of Arbitrating Defamation And Libel Claims Considering Ipso’S Pilot Program, Emma Altheide
Arbitration For The “Afflicted” — The Viability Of Arbitrating Defamation And Libel Claims Considering Ipso’S Pilot Program, Emma Altheide
Journal of Dispute Resolution
Filing suit for defamation or libel is signing up for an expensive and time-consuming endeavor. If it proceeds to trial, this type of litigation comes with high costs for both sides: potentially millions of dollars in legal fees, and years of court battles. Average judgments against defendant publishers are high, often because uncapped punitive damages are available. Plaintiffs may wait years to receive a judgment, only to spend a significant portion on attorneys’ fees. Given the inefficiency of the courts in handling defamation and libel claims, how might an alternative forum provide for a quicker process, with lower costs for …
The English Inheritance—What The First American Colonists Knew Of Mediation And Arbitration, Derek Roebuck
The English Inheritance—What The First American Colonists Knew Of Mediation And Arbitration, Derek Roebuck
Journal of Dispute Resolution
It seems fair to assume that the first American colonists took with them attitudes and practices from home, including the ways in which they routinely resolved disputes. For example, on November 11, 1647 the General Court of the Massachusetts Bay Colony authorized the purchase of Edward Coke’s Reports, First and Second Institutes and Book of Entries, “to the end we may have the better light for making and proceedings about laws.” But does that mean it was natural then for parties with differences to look to litigation for an answer? This Article provides ample evidence of a preference for other …
Seeking Justice For Grandma: Challenging Mandatory Arbitration In Nursing Home Contracts, Andi Alper
Seeking Justice For Grandma: Challenging Mandatory Arbitration In Nursing Home Contracts, Andi Alper
Journal of Dispute Resolution
This Comment advocates against the use of mandatory arbitration in nursing home admission contracts and discusses various legal theories available to refute such clauses. Part II discusses mandatory arbitration in general and its use in nursing home admission contracts. Part III summarizes some of the common arguments made in favor of and against arbitration in nursing home admission contracts. Finally, Part IV addresses how courts analyze these agreements and possible approaches to avoid arbitration of disputes arising out of the nursing home contract.
Professor Roebuck’S Lessons For Mediators, Arbitrators, And Historians, Douglas E. Abrams
Professor Roebuck’S Lessons For Mediators, Arbitrators, And Historians, Douglas E. Abrams
Journal of Dispute Resolution
Professor Roebuck’s biographical essay on Nathaniel Bacon, the centerpiece of his historical article, delivers a timely lesson about how adherence to solid personal standards can elevate a mediator or arbitrator above the rest of the pack. With an eye toward future national direction, the article closes by summoning American historians to chronicle the development of alternative dispute resolution (ADR) since the nation’s colonial days.
For Eschewing Of Trouble And Exorbitant Expense: Arbitration In The Early Modern British Isles Symposium, Margo Todd
For Eschewing Of Trouble And Exorbitant Expense: Arbitration In The Early Modern British Isles Symposium, Margo Todd
Journal of Dispute Resolution
The history of binding arbitration in British customary law is very long, and in scope, very broad. In Scotland and in England, in settings both urban and rural, commercial and ecclesiastical, and across a broad range of social estates, from craftsmen to lords, alewives to merchant princes, it had by the sixteenth and seventeenth centuries become the default mechanism to avoid costly litigation, and to resolve disputes likely otherwise to end in bloodshed.1 It was often a device to avoid the courts, since litigation was always expensive and time-consuming; however, in a great number of cases it occurred in cooperation …
Constructions Of Arbitration's Informalism: Autonomy, Efficiency, And Justicesymposium, Hiro N. Aragaki
Constructions Of Arbitration's Informalism: Autonomy, Efficiency, And Justicesymposium, Hiro N. Aragaki
Journal of Dispute Resolution
In the wake of a recent three-part series by the New York Times, arbitration is now back in the eye of the storm. The leading critique of arbitration, especially in the consumer and employment space, is that it is unjust both in the sense that it does not comport with basic notions of procedural fairness and/or because it cannot be expected to produce outcomes we would consider substantively just. For example, procedure in arbitration is dictated largely by contract rather than by mandatory rules that have been vetted by public bodies entrusted with safeguarding procedural values. Arbitrators are not bound …
Beyond The Faa: Arbitration Procedure, Practice, And Policy In Historical Perspective Symposium: Introduction, Carli N. Conklin
Beyond The Faa: Arbitration Procedure, Practice, And Policy In Historical Perspective Symposium: Introduction, Carli N. Conklin
Journal of Dispute Resolution
The purpose of this symposium edition of the Journal of Dispute Resolution is to widen the focus of our present-day discourse on arbitration by exploring the broader histories of arbitration in America, considering not only what arbitration procedure, practice, and policy looked like in early America (and in the earlier legal, cultural, or religious systems from which American arbitration was adopted), but also how those broader histories might contribute to important discussions and developments in arbitration procedure, practice, and policy today. To that end, we brought together scholars in law and history whose combined works restore breadth and depth to …
The Historically Shifting Sands Of Reasons To Arbitrate Symposium, James Oldham
The Historically Shifting Sands Of Reasons To Arbitrate Symposium, James Oldham
Journal of Dispute Resolution
It is well established that for many centuries, arbitration has been a regular, even frequent, method of dispute settlement in the Western World. Derek Roebuck has done path breaking research demonstrating this in his recent book covering the middle ages (1154-1558)1 and in his contribution to this symposium, “The English Experience: What the First American Colonists Knew of Mediation and Arbitration.”2 My own work, with the excellent help of co-authors Henry Horwitz and Su Jin Kim, has explored English patterns from the late 17th century into the 1800s, also tracing the English approach into the American colonies and the early …
Arbitration And Elite Honour In Elizabethan England: A Case Study Of Bess Of Hardwick Symposium, Francis Calvert Boorman
Arbitration And Elite Honour In Elizabethan England: A Case Study Of Bess Of Hardwick Symposium, Francis Calvert Boorman
Journal of Dispute Resolution
During the 1580s, Queen Elizabeth I intervened in a marital dispute between two of her foremost subjects, George Talbot, Earl of Shrewsbury and his wife, commonly referred to as Bess of Hardwick. The Queen appointed several of her Privy Councillors to negotiate a reconciliation. These events provide a case study of the use of arbitration and mediation in resolving familial disputes among the elite of Elizabethan England, and their particular application by the Queen and her closest advisers. This article also highlights the importance of contemporary conceptions of gender and honor to dispute resolution.
A Variety Of State-Level Procedures, Practices, And Policies: Arbitration In Early America Symposium, Carli N. Conklin
A Variety Of State-Level Procedures, Practices, And Policies: Arbitration In Early America Symposium, Carli N. Conklin
Journal of Dispute Resolution
This article seeks to explore the history of arbitration more in depth by taking a close look at the historical procedures, practices, and policies of arbitration in three states: Kentucky, New Jersey, and Massachusetts. Each state developed a complex system of arbitration that included multiple arbitration procedures drawn from English law. Each state had unique geographic, political, social, religious, or commercial conditions that influenced not only the development of arbitration in that state, but also arbitration practice and the policy goals surrounding its use. A closer look at arbitration in early America reveals that, rather than one history of American …
Exploring The Federal Arbitration Act Through The Lens Of History Symposium, Imre Stephen Szalai
Exploring The Federal Arbitration Act Through The Lens Of History Symposium, Imre Stephen Szalai
Journal of Dispute Resolution
The United States Arbitration Act (known today as the Federal Arbitration Act, or FAA) is a relatively short and deceptively cryptic statute. The heart of the statute, section 2, is one sentence, and this key provision simply declares that arbitration agreements are generally “valid, irrevocable, and enforceable.” There is not much traditional legislative history surrounding this statute because much of the development of the bill that became the FAA occurred through organizations outside of Congress, like the American Bar Association and the New York Chamber of Commerce.3 As a result, to understand the FAA at a deeper level, it is …
Ancient And Comely Order: The Use And Disuse Of Arbitration By New York Quakers Symposium, F. Peter Phillips
Ancient And Comely Order: The Use And Disuse Of Arbitration By New York Quakers Symposium, F. Peter Phillips
Journal of Dispute Resolution
From the late 17th century, the Religious Society of Friends ("Quakers") observed a method of resolving disputes arising within congregations that was scripturally based, and culminated in final and binding arbitration. The practice of Quaker arbitration gradually disappeared during the late 19th and early 20th centuries, and few modern Quakers are even aware of it. This article traces that decline and notes similarities with mercantile arbitration. In both religious and mercantile arbitration, a defined community valued the goal of avoiding group disruption more than the goal of vindicating individual legal rights. In both cases, members of the community applied distinct …
The Latest Nfl Fumble: Using Its Commissioner As The Sole Arbitrator, Theresa Mullineaux
The Latest Nfl Fumble: Using Its Commissioner As The Sole Arbitrator, Theresa Mullineaux
Journal of Dispute Resolution
The National Football League (NFL) is the governing body of professional football in America and is led by Commissioner Roger Goodell who acts as the chief executive of the NFL overseeing all 32 NFL teams. Amongst his vast powers includes resolving disputes with “full, complete, and final jurisdiction to arbitrate any dispute between any player, coach, and/or other employee of any member of the League (or any combination thereof) and any member club or clubs.” The Commissioner’s ability to make binding decisions in these disputes is diminished by a clear conflict of interest. This must be changed. This Note will …
The Special Nature Of International Insurance And Reinsurance Arbitration: A Response To Professor Jerry, S. I. Strong
The Special Nature Of International Insurance And Reinsurance Arbitration: A Response To Professor Jerry, S. I. Strong
Journal of Dispute Resolution
No abstract provided.
Get The Best Of Both Worlds: Illusory Arbitration Agreements, Desiree Shay
Get The Best Of Both Worlds: Illusory Arbitration Agreements, Desiree Shay
Journal of Dispute Resolution
This Note addresses the clauses in franchise-franchisee agreements that preserve the right for a franchisor to unilaterally alter the terms of arbitration after the franchise relationship has begun. A majority of courts, applying state contract law, have held that these clauses are unenforceable due to a lack of consideration, making the contract illusory. However, courts still come to different conclusions because each court has to follow state contract law. The United States Supreme Court’s holding on this issue might not be able to have full effect because the Federal Arbitration Act requires that courts rely on state law. The Seventh …
International Arbitration, Judicial Education, And Legal Elites, Catherine A. Rogers
International Arbitration, Judicial Education, And Legal Elites, Catherine A. Rogers
Journal of Dispute Resolution
This essay sketches an account of how investment arbitration affects development of local legal institutions, in particular domestic courts. When investment arbitration is introduced into a local legal environment, it becomes integrated with international commercial arbitration, and often domestic arbitration. This integration occurs because the local economic elites, private law firms, and local businesses that deal with (or compete with) foreign investors and investment arbitration disputes also deal with international commercial matters, international commercial disputes, and domestic arbitration.
Arbitration Whack-A-Mole: The Federal Policy Favoring Arbitration Hammers The Rights Of Individual Employees, Spring E. Taylor
Arbitration Whack-A-Mole: The Federal Policy Favoring Arbitration Hammers The Rights Of Individual Employees, Spring E. Taylor
Journal of Dispute Resolution
In a country that protects the plaintiff's right to a day in court, it only seems natural that Sally should have the opportunity to take her cause to the courthouse. But the strong fedral presumption that supports the enforcement of arbitration provisions is like a hammber that pushes plaintiffs like Sally and those if Huffman into the arbitration arena. In Huffman, the Sixth Circuit rescued an employwer from an ambiguous arbitration provision contained in the employer-drafted employment agreement and enforced the arbitration provision as one of the provisions to survive expiration of the contract, even though it was not listed …
Deference, Clarity, And The Future Of Arbitration In Investor-State Dispute Settlements, Robert N. Mace
Deference, Clarity, And The Future Of Arbitration In Investor-State Dispute Settlements, Robert N. Mace
Journal of Dispute Resolution
The result in BG Group, PLC demonstrates the Court’s desire to sustain arbitration as an effective and independent means of resolving disputes. The Court displayed an inclination to limit the influence of the judiciary on the process of BIT arbitration, recognizing the important position of BITs in global commerce and the prominence of the United States. Ultimately, the Court aligned the interpretive framework of domestic and international arbitration review in an effort to simplify review for courts and better inform stakeholders to the level of involvement of the judicial system in BITs that contain arbitration provisions.
Concepcion And Mis-Concepcion: Why Unconscionability Survives The Supreme Court's Arbitration Jurisprudence, Richard Frankel
Concepcion And Mis-Concepcion: Why Unconscionability Survives The Supreme Court's Arbitration Jurisprudence, Richard Frankel
Journal of Dispute Resolution
States have long relied on the doctrines of unconscionability and public policy to protect individuals against unfair terms in mandatory arbitration provisions. The Supreme Court recently struck a blow to such efforts in AT&T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant. In those two cases, the Court established that a challenge to the enforceability of unfairly one-sided arbitration clauses is preempted if it would interfere with "fundamental attributes of arbitration." Several commentators have argued that these decisions will dramatically alter the arbitration landscape, by wiping away virtually any contract defense to the validity of an …
Employment Arbitration At The Crossroads: An Assessment And Call For Action, Stephen L. Hayford, Jamie Darin Prenkert, Anjanette H. Raymond
Employment Arbitration At The Crossroads: An Assessment And Call For Action, Stephen L. Hayford, Jamie Darin Prenkert, Anjanette H. Raymond
Journal of Dispute Resolution
Arbitration agreements must be on equal footing with all types of contracts. This stark reality demands that the various stakeholders in the arbitration community converge in the interest of designing and institutionalizing arbitration mechanics and processes that, as a start, exceed the minimum requirements to avoid arguments of substantive unconscionability and, more broadly, provide the fair, just, and accountable alternative dispute resolution system the FAA and the U.S. Supreme Court have indicated it can be. This paper seeks to guide this next stage of the debate by first reviewing the doctrinal developments over the past thirty years that led to …
Europe's Role In Alternative Dispute Resolution: Off To A Good Start?, Maud Piers
Europe's Role In Alternative Dispute Resolution: Off To A Good Start?, Maud Piers
Journal of Dispute Resolution
ADR has become a topical issue in contemporary European procedural private law. Over the past fifteen years, European lawmakers have displayed particular interest in extra-judicial dispute resolution methods as part of a broader effort to promote better access to justice. For example, Directive 2008/52 sets out a framework for the use of mediation in cross-border disputes on civil and commercial matters. The European Commission's influential Recommendations 98/257 and 2001/310, which respectively deal with out-of-court dispute settlements and consensual dispute mechanisms, constitute a starting point for constructing a new approach to ADR. In March of 2013, the European Parliament and the …
Plurality Influence: Reed Elsevier And The Precedential Value Of Bazzle On Class Arbitrability, Kevin P. Sack
Plurality Influence: Reed Elsevier And The Precedential Value Of Bazzle On Class Arbitrability, Kevin P. Sack
Journal of Dispute Resolution
Class arbitration is a tricky process to navigate as it introduces more parties, higher stakes, and more procedures than typical bilateral arbitration. Because class arbitration is more complex, the determination as to whether an arbitration agreement authorizes class arbitration (class arbitrability) is an important one, and the entity that makes the class determination should be knowledgeable about class procedures in order to be suited to make such an important finding. In Reed Elsevier, Inc. ex rel. LexisNexis Div. v. Crockett, the Sixth Circuit held that the determination of class arbitrability should be presumptively reserved to judicial courts, not arbitrators, unless …
Head Of The Class: Oxford Health Plans And The Uncertain Future Of Class Arbitrability Determinations, Kevin Sack
Head Of The Class: Oxford Health Plans And The Uncertain Future Of Class Arbitrability Determinations, Kevin Sack
Journal of Dispute Resolution
Arbitration clauses allow contracting parties to resolve their contractual disputes without being subjected to lengthy and expensive judicial processes. Arbitrators are authorized to interpret contractual arbitration agreements to determine which issues the parties agreed to arbitrate. However, contract arbitration provisions are often silent as to the availability of class action procedures. Oxford Health Plans LLC v. Sutter held that, when parties expressly agree to allow an arbitrator to interpret whether their agreement allows class action arbitration, the arbitrator does not exceed his authority in doing so, regardless of interpretive error.' This note first discusses how the United States Supreme Court …
Developing A Framework For Arbitrating Standards-Essential Patent Disputes, Jorge L. Contreras, David L. Newman
Developing A Framework For Arbitrating Standards-Essential Patent Disputes, Jorge L. Contreras, David L. Newman
Journal of Dispute Resolution
This article lays the groundwork for the development of such procedures and identifies several key areas requiring further study and deliberation. Particular attention is paid to fundamental questions such as whether SEP arbitration should be mandated by SDOs, which conflicts should be arbitrated, whether arbitral decisions should be confidential, and what form arbitration proceedings should take. While, at this early stage, these difficult questions cannot be answered definitively, this article offers a framework for further discussion that the authors hope will be useful for policy makers, industry participants, and commentators considering these important issues.
Waiving Goodbye To Arbitration: Factoring Prejudice When A Party Delays Assertion Of Its Contractual Right To Arbitrate: Elliot V. Kb Home N.C., Inc., Kristen Sanocki
Waiving Goodbye To Arbitration: Factoring Prejudice When A Party Delays Assertion Of Its Contractual Right To Arbitrate: Elliot V. Kb Home N.C., Inc., Kristen Sanocki
Journal of Dispute Resolution
This note addresses the lawsuit described above, Elliott v. KB Home N.C., Inc., concerning whether KB Home waived its contractual right to arbitration by waiting three years to assert that right, which ultimately prejudiced a class of plaintiffs pursuing litigation against it. After examining how North Carolina courts decide whether to compel arbitration, this note will analyze the four-factor test North Carolina courts use to determine whether a party has sat on its right to arbitrate for too long, subjecting itself to waiver of arbitration. Finally, this note contends that North Carolina's four-factor test, as opposed to a bright-line rule, …
Correcting A Flaw In The Arbitration Fairness Act, Imre Stephen Szalai
Correcting A Flaw In The Arbitration Fairness Act, Imre Stephen Szalai
Journal of Dispute Resolution
The proposed Arbitration Fairness Act of 2013 will ban courts from enforcing arbitration agreements in the employment and consumer contexts. This law will protect America's employees and consumers by keeping the courthouse door open to critical civil rights, employment, and consumer protection litigation. However, the proposed Arbitration Fairness Act suffers from a subtle flaw: it is uncertain whether the law will apply to the states. This flaw, which arises from one of the greatest constitutional errors the Supreme Court has ever made, must be corrected in order to provide the broadest protection to millions of American employees and consumers, and …
When Regulations And Arbitration Awards Collide: Potential Difficulties For Arbitrators And Parties: Bangor Gas Co., Llc V. H.Q. Energy Serv. U.S. Inc., Greg Mitchell
Journal of Dispute Resolution
Many commercial transactions are complex. The increasing presence of both arbitration and administrative regulations are part of what creates this complexity. It is thus possible that parties to a commercial transaction will find themselves in arbitration over a dispute involving regulations. This note will explore the potential difficulties parties and arbitrators face when arbitration awards and regulations collide. The difficulties for parties include grounds for vacatur that are either nonexistent or hard to meet, and potentially being forced to choose between violating a regulation or not complying with the award. Additionally, arbitrators face difficulties in fashioning awards that comply with …
You Can't Have Your Trust And Defeat It Too: Why Mandatory Arbitration Provisions In Trusts Are Enforceable, And Why State Courts Are Getting It Wrong, Rachel M. Hirshberg
You Can't Have Your Trust And Defeat It Too: Why Mandatory Arbitration Provisions In Trusts Are Enforceable, And Why State Courts Are Getting It Wrong, Rachel M. Hirshberg
Journal of Dispute Resolution
This note addresses a recent decision by the Texas State Court of Appeals concerning the enforceability of mandatory arbitration provisions found in testamentary instruments, and specifically, inter vivos trusts. After analyzing the legal background of arbitration, the use of contract principles to analyze both arbitration and trust agreements, and statutory enactments making trust arbitration provisions enforceable, this note will discuss the nuanced relationship between contract principles of construction, arbitration agreements, and trust instruments, and specifically the relationship between trust agreements and contracts. In analyzing these relationships, this note will also address the differences between the statute at issue in Rachal …