Law Commons^™

“All Aboard!” An Overview Of The Continuing Debate Regarding The Enforceability Of Dispute Resolution Provisions Of Filipino Seamen Employment Contracts, Richard V. Blystone

ExpressO

No abstract provided.

The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park

Faculty Scholarship

If a pollster asked a random selection of Americans for a one-line verbal portrait of arbitration, common responses might include the following: (i) private litigation arising for construction and business disputes; (ii) a mechanism to resolve workplace tensions between management and labor; (iii) a process by which finance companies and stock brokers shield themselves from customer complaints; (iv) a way to level the playing field in deciding commercial controversies among companies from different parts of the world; (v) the way big corporations use NAFTA to escape regulation. To some extent all would be correct.'

Unfortunately, these different varieties of arbitration …

Arbitration And Contract: What Are The Law Schools Teaching?, Stephen K. Huber

ExpressO

No abstract provided.

Mechanisms For Addressing Third Party Impacts Resulting From Voluntary Water Transfers, Vernon L. Smith, James J. Murphy, Ariel Dinar, Richard E. Howitt, Erin Mastrangelo, Stephen Rassenti

Vernon L. Smith

This paper uses laboratory experiments to test alternative water market institutions designed to protect third party interests. The institutions tested include taxing mechanisms that raise revenue to compensate affected third parties and a market in which third parties actively participate. The results indicate that there are some important trade-offs in selecting a policy option. Active third party participation in the market is likely to result in free riding that may erode some or all of the efficiency gains, and may introduce volatility into the market. Taxing transfers and compensating third parties offers a promising balance of efficiency, equity and market …

Tie That Doesn't Bind: Fifth Circuit Rules That Non-Signatory Agents Can't Compel Arbitration As Individuals - Westmoreland V. Sadoux, The, Keisha I. Patrick

Journal of Dispute Resolution

In Westmoreland v. Sadoux, the Fifth Circuit addresses the issue of whether a signatory party intended to enter an arbitration agreement with a non-signatory agent of the defendant corporation. The non-signatory agent sought to enforce the arbitration agreement between the signatory party and the signatory corporation in a suit brought against the non-signatory agent in his individual capacity. This case differs from most others that courts have addressed concerning non-signatory agents. In most cases, the complaining party seeks to enforce the arbitration agreement against the non-signatory agent. Yet, in Westmoreland, the nonsignatory agent himself seeks to compel arbitration

The Economics Of Litigation And Arbitration: An Application To Franchise Contracts, Keith N. Hylton, Christopher R. Drahozal

Faculty Scholarship

If we define the deterrence benefits from contract enforcement as avoided harms net of avoidance costs, we should expect contracting parties to choose the dispute resolution forum that provides the greatest difference between deterrence benefits and dispute resolution costs for every type of dispute. We apply this general framework to franchise contracts and conduct an empirical analysis of the determinants of arbitration agreements among franchising parties. Although it is obvious that contracting parties have an incentive to choose arbitration in order to reduce dispute-resolution costs, there have been no studies of the importance of deterrence concerns. We examine the deterrence …

Arbitration And Unconscionability, Eric J. Mogilnicki, Kirk D. Jensen

Georgia State University Law Review

No abstract provided.

The Irony Of Securities Arbitration Today: Why Do Brokerage Firms Need Judicial Protection?, Barbara Black

Faculty Articles and Other Publications

In 1987 the securities industry achieved a major victory. Until then, because of the Supreme Court's 1953 holding in Wilko v. Swan that agreements to arbitrate federal securities claims contained in customer agreements were unenforceable, customers could sue brokerage firms and their salespersons in court, frequently before juries amenable to sizable verdicts, including punitive damages.

Illustrating a classic example of “be careful what you wish for,” brokerage firms no longer find arbitration entirely to their liking. Increasingly they turn to the courts to resist arbitration, to interfere with ongoing arbitration, or to undo the results of arbitration.

Unfortunately, both federal …

Self-Deregulation, The "National Policy" Of The Supreme Court, Paul D. Carrington

Nevada Law Journal

No abstract provided.

The Provisional Director Remedy For Corporate Deadlock: A Proposed Model Statute, Susanna Ripken

Susanna K. Ripken

The article discusses a unique remedy for shareholder and director deadlock within corporations: the appointment of provisional directors to corporate boards. Provisional directors are neutral third parties who are appointed by courts to act temporarily as tie-breaking directors in corporations paralyzed by deadlock. Provisional directors possess the same rights and powers of ordinary directors to vote at meetings. The provisional director remedy is a valuable dispute resolution mechanism that shares similarities with other alternative forms of dispute resolution, including arbitration, mediation, and a hybrid form called mediation-arbitration.

The appointment of a provisional director raises concerns about both the autonomy rights …

The Exercise Of Contract Freedom In The Making Of Arbitration Agreements, Thomas E. Carbonneau

Journal Articles

A universal principle of contemporary arbitration law is that contract plays a vital role in the governance of arbitration. The vitality of that role can vary by legal system, court,statute, or treaty. Nonetheless, party agreement often provides the most significant rules for regulating arbitrations and conducting arbitral proceedings. This is especially true in international commercial arbitration. There, the lack of a functional transborder legislativeand adjudicatory process made contract the principal source of law for internationalcommercial transactions and arbitrations. Although law-making is more possible withinindividual national legal systems, the rule of contract freedom is also firmly established inmatters of domestic arbitration. …

Can Compulsory Arbitration Be Reconciled With Section 7 Rights?, Ann C. Hodges

Law Faculty Publications

Employers are increasingly imposing arbitration agreements on their employees as a condition of employment. These agreements force the employees to arbitrate, rather than litigate, any legal claims arising out of their employment. For employees covered by the National Labor Relations Act, such agreements may impair their rights to engage in concerted activity, since litigation of employment claims is protected by Section 7. Employee rights to file class actions, consolidate claims, and seek broad injunctive relief are concerted actions that are particularly threatened by the move to compelled arbitration. The Article analyzes the impact of arbitration agreements on various forms of …

New Era Of Disclosure: California Judicial Council Enacts Arbitrator Ethics Standards - Ethics Standards For Neutral Arbitrators In Contractual Arbitration, A, Keisha I. Patrick

Journal of Dispute Resolution

Although the current CJC ethics rules consist of seventeen standards and several subsections "intended to guide the conduct of arbitrators, '17 this Note will focus only on the disclosure requirements. The Note will also compare the CJC standards with disclosure rules that provider organizations have previously enacted.

Renegotiation And Adaptation Of International Investment Contracts, Klaus P. Berger

Vanderbilt Journal of Transnational Law

In modern-day international investment practice, especially in connection with the exploitation of natural resources, Production Sharing Agreements have come to take over the role of the classic concession agreement. Like their predecessors, these contracts are particularly vulnerable to disturbances in the commercial balance agreed to, or assumed by, the parties at the conclusion of the contract. This vulnerability has three primary causes.

First, these are classic examples of long term contracts. In the petroleum industry, the commitment of significant capital for exploration, particularly in development, and the assumption of considerable risk, particularly in exploration, require contracts covering up to and …

The Exercise Of Contract Freedom In The Making Of Arbitration Agreements, Thomas E. Carbonneau

Vanderbilt Journal of Transnational Law

The privatization and contractualization of arbitration, while they empower parties and unburden public institutions, should not eliminate completely the basis for the public regulation of the process. The string of "one-off' arbitrations, gathered together, has consequences upon the public interest in the orderly administration of adjudicative relations in both domestic and international law. The use of arbitration does have a bearing upon the substantive content of legal rights. Judicial vigilance should not only ward off the flagrant abuses of process and procedure in arbitration, but it should also establish an "interests of justice" limitation upon the operation of the process …

Major League Baseball's Answer To Salary Disputes And The Strike:, Brien M. Wassner

Vanderbilt Journal of Entertainment & Technology Law

Initially, this paper will briefly consider arbitration in general and then discuss the evolution of FOA and its implementation into MLB salary disputes. This paper will thereafter analyze the praises and criticisms of FOA, and establish that FOA is a superior mechanism for resolving salary disputes in professional sports because the FOA system is designed to facilitate negotiation and settlement rather than to resolve the dispute subsequent to adversarial hearings.

The Rise And Spread Of Mandatory Arbitration As A Substitute For The Jury Trial, Jean R. Sternlight

Scholarly Works

THE CIVIL JURY trial is fast disappearing from our legal landscape, and one important reason for its disappearance is the rapid growth of mandatory arbitration. Yet, the imposition of mandatory arbitration eliminates the civil jury, and often this elimination is not made through a knowing, voluntary, or intelligent waiver. As I have argued elsewhere in greater detail, unless federal courts are generally willing to abandon the Seventh Amendment "knowing/voluntary/intelligent" civil jury trial waiver standard, they need to significantly revise their approach to mandatory arbitration clauses. If a given state allows the civil jury trial right to be waived through a …

The Culture Of Arbitration, Tom Ginsburg

Vanderbilt Journal of Transnational Law

The relationship between "legal culture" and the practice of international arbitration has received increasing attention in recent years. Many see arbitration as a meeting point for different legal cultures, a place of convergence and interchange wherein practitioners from different backgrounds create new practices. Some have suggested that this process has led to an emergent "international arbitration culture" fusing together elements of the common law and civil law traditions. Others see arbitration as a locus of conflict among traditions or as competition among various players.

This comment contests the view that the current state of convergence in arbitration is properly considered …

Renegotiation And Adaptation Clauses In Investment Contracts, Revisited, John Y. Gotanda

Vanderbilt Journal of Transnational Law

Professor Dr. Klaus Berger, in Renegotiation and Adaptation of International Investment Contracts: The Role of Contract Drafters and Arbitrators, proposes that international investment contracts include a clause allowing the parties to renegotiate the terms of their contract if certain events take place.' If they are unable to reach an agreement, Professor Berger advocates that the parties agree to permit an arbitral tribunal to modify the terms of the contract to restore the economic equilibrium assumed by the parties when they concluded the agreement. Although commentators have often championed these clauses, private parties involved in international transactions have included them infrequently. …

Forgetfulness, Fuzziness, Functionality, Fairness And Freedom, In Dispute Resolution, Jeffrey W. Stempel

Scholarly Works

Professor Subrin is a self-professed traditionalist who has been one of the most forceful defenders of what I might term neo-traditional “Clarkian” litigation. By that, I mean the model of civil disputing in which litigation is a primary vehicle. More important, the litigation is based on notice pleading, broad discovery, and a preference for adjudication on the merits.

Key Subrin works over the years have focused on the historical path of the Clarkian model, which served to fuel much of the law revolution of the mid-Twentieth Century, to the “new era” of civil procedure and dispute resolution that dominated the …

The New Face Of Investment Arbitration: Nafta Chapter 11, William W. Park

Faculty Scholarship

To protect American investment abroad, the United States traditionally endorsed arbitration as a preferred means to resolve disputes between investors and host countries. Yet a growing awareness of the down-side of arbitration, at least from the perspective of the party seeking the home-town justice of its own courts, has led to media attacks and legislative initiatives intended to hobble neutral international adjudication. This article suggests that assaults on investment arbitration are misguided, and may end up doing more harm than good. On balance, NAFTA arbitration serves as a positive force in the protection of legitimate economic expectations, enhancing the type …

Introduction To The Decennial Volume, George A. Bermann

Faculty Scholarship

Ten years ago, when the Columbia Journal of European Law began, the European Union was, as we tend to say, "in a different place" than it is today. The "internal market" or, as it was called, the "1992" program had very largely been achieved, validating the institutional changes wrought by the Single European Act and boosting incalculably the Community's credibility as a regional economic entity and potential international political force. The Member States had just successfully orchestrated what may fairly be regarded as their most ambitious Intergovernmental Conference to date, culminating in the Treaty of Maastricht. While the referendum road …

International Commercial Dispute Resolution, William W. Park, Andrea K. Bjorklund, Jack J. Coe

Faculty Scholarship

A recent Court of Appeals decision has made it more difficult for judges in the United States to second-guess arbitrators in international cases. To understand the significance of the recent decision, one must remember that the Federal Arbitration Act (FAA) has been interpreted to permit vacatur of awards in an international arbitration on the same grounds available in domestic cases. Thus, a litigant who is unhappy with an arbitrator's decision gets a chance to re-argue the case by alleging "manifest disregard of the law," a ground for judicial review created fifty years ago by Supreme Court dictum.

Arbitration, Consent And Contractual Theory: The Implications Of Eeoc V.Waffle House, Jaime L. Dodge, Elizabeth Pollman

All Faculty Scholarship

Consent has long been the foundation of arbitration, giving the process legitimacy and informing decisions about its nature and structure. The Supreme Court has consistently required consent as a precondition for compelling arbitration. However, it remains unclear what actions constitute consent. In First Options v. Kaplan,1 the Supreme Court held that courts should apply state contract law to determine whether an arbitral clause exists, but “added an important qualification” that “[c]ourts should not assume that the parties have agreed to arbitrate unless there is clear and unmistakable evidence that they did so.”2 In the wake of First Options, the courts …

The American Influence On International Arbitration, Roger P. Alford

Journal Articles

It is indisputable that the international arbitration world is an identifiable epistemic community that transcends national borders, and whose members are shaped by their own experience. Increasingly, that experience reflects an American influence, be it heritage, training, affiliation, or client base. In these remarks, Professor Alford addresses three issues related to the Americanization of international arbitration. The first is whether international arbitration has, in fact, only recently become Americanized. He posits instead that there is always an ebb and flow to the level of the United States' involvement in international arbitration. During the drafting and signing of the 1958 New …

Teaching Adr In The Labor Field In China, Theodore J. St. Antoine

Articles

The editors have asked us to be quite personal in our ruminations on the future of comparative labor law and policy. For me, over the past several years, the focus has been on China. My first visit to China in 1994, purely as a tourist, was almost by accident. In late September of that year I attended the XIV World Congress of the International Society for Labor Law and Social Security in Seoul, South Korea. In the second week of October, I was scheduled to begin teaching a oneterm course in American law as a visiting professor at Cambridge University …

Adr Without Borders, Theodore J. St. Antoine

Articles

My task is to assess the ways in which alternative dispute resolution procedures may be adapted to deal with international labor disputes. ADR refers to various methods by which neutral third parties assist persons engaged in a conflict to settle their differences without involving the decision-making power of the state or other sanction-imposing body. Both mediation and arbitration are included. In mediation the neutral seeks to get the parties to agree on a mutually acceptable solution. In arbitration the neutral imposes a solution after presentations by the contending parties. A third term, conciliation, is sometimes used and generally connotes a …

Confidentiality's Constitutionality: The Incursion On Judicial Powers To Regulate Parties In Court-Connected Mediation, Maureen A. Weston Prof.

Maureen A Weston

This Article explores the interplay between mediation confidentiality legislation and judicial powers to regulate participant conduct in the pretrial process. Part II describes the role of the court in monitoring parties' conduct in distinct settlement-related processes, such as private settlement negotiations, judicial settlement conferences, court-connected arbitration, and court-connected mediation, as well as the corresponding but varied confidentiality protection accorded these processes. Part III examines judicial decisions analyzing the tension between mediation confidentiality and judicial power to monitor and sanction misconduct in a settlement or court-connected mediation setting, specifically comparing the approach used by the California Supreme Court in Foxgate Homeowners’ …

Contractual Arbitration, Mandatory Arbitration And State Constitutional Jury-Trial Rights, Stephen Ware

Stephen Ware

This Article discusses the relationship between the Federal Arbitration Act and state constitutional jury-trial rights.

Teaching Arbitration Law, Stephen Ware

Stephen Ware

This article is written with the following goals: to provide useful suggestions for those who teach arbitration, to persuade some ADR teachers who only touch on arbitration to give serious thought to additional coverage, to persuade some teachers to include a bit of arbitration in their first-year courses, and to encourage the continued growth of fine teaching materials on arbitration.