Law Commons^™

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

Valerio Sangiovanni

No abstract provided.

Book Review - The Science Of Settlement: Ideas For Negotiators, Rebekah K. Maxwell

Faculty Publications

No abstract provided.

Perceptions Of Fairness In Securities Arbitration: An Empirical Study, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This Report to the Securities Industry Conference on Arbitration (SICA) documents the results of the authors’ empirical study, through a one-time mailed survey, of survey participants’ perceptions of fairness of securities Self-Regulatory Organization (SRO) arbitrations involving customers. The survey was designed to assess participants’ perceptions of the: (1) fairness of the SRO arbitration process; (2) competence of arbitrators to resolve investors’ disputes with their broker-dealers; (3) fairness of SRO arbitration as compared to their perceptions of fairness in securities litigation in similar disputes; and (4) fairness of the outcome of arbitrations.

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 …

The Argentine Financial Crisis: State Liability Under Bits And The Legitimacy Of The Icsid System, William W. Burke-White

All Faculty Scholarship

This essay examines the jurisprudence of the International Center for the Settlement of Investment Disputes (ICSID) arbitral tribunals in a series of cases brought against the Republic of Argentina in the wake of the 2001-2002 Argentine financial collapse. The essay considers the ICSID tribunals' treatment of non-precluded measures provisions in Argentina's bilateral investment treaties (BITs) and the customary law defense of necessity and argues that the ICSID tribunals have sought to radically narrow the opportunities available to states to craft policy responses to emergency situations while strengthening investor protections beyond the intent of the states parties to the BITs under …

Fin Rah!...A Welcome Change: Why The Merger Was Necessary To Preserve U.S. Market Integrity, Yesenia Cervantes

Fordham Journal of Corporate & Financial Law

No abstract provided.

Do Cognitive Biases Affect Adjudication?: A Study Of Labor Arbitrators (With Monica Biernat), Martin H. Malin, Monica Biernat

All Faculty Scholarship

Labor arbitrators were presented with four cases to decide, each involving a challenge to discipline or discharge of an employee resulting from a work-family conflict. Arbitrators were randomly given versions of the cases in which the gender and one other characteristivc of the employee were varied. The results showed little evidence of direct gender bias in decision-making but did reflect bias against single parents and employees with eldercare, as opposed to childcare, responsibilities. Implications for other adjudicators, including judges, jurors and administrative agency officials are discussed.

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 …

Commercial Peace And Political Competition In The Crosshairs Of International Arbitration, Thomas E. Carbonneau

Journal Articles

This article examines the mixed effect of arbitration upon the generation of international law norms; in particular, how arbitration can generate private law norms so effectively and yet still face strong resistance in public international law processes and controversies. The work of arbitration for international commercial litigation has been nothing less than spectacular. In both the private international and domestic civil contexts, arbitration has provided viable remedial solutions and functional adjudication when the law was either nonexistent or incapacitated. It has supplied a workable and adaptable trial system, which-on the international side-could also generate substantive legal norms. Arbitration thereby has …

The Revolution In Law Through Arbitration, Thomas E. Carbonneau

Journal Articles

My subject is arbitration. I explore how its re-emergence during the last forty years has revolutionized the thinking about, and the practice of, law. The development of a "strong federal policy favoring arbitration" cast aside traditional acceptations about law and adjudication. The rule of law-the human civilization associated with law and the legal process-has been profoundly, perhaps irretrievably, altered by the rise of arbitration. The landmark cases in labor and employment arbitration- Alexander v.Gardner-Denver Company (the "old time religion") and Gilmer v. Interstate/JohnsonLane Corporation (the "new age" thinking)- attest to the enormous distance that separates past and present concepts of …

Technology Mediated Dispute Resolution Can Improve The Registry Of Interpreters For The Deaf Ethical Practices System: The Deaf Community Is Well Prepared And Can Lead By Example, David Allen Larson, Paula Gajewski Mickelson

Faculty Scholarship

The work of American Sign Language (ASL)/English interpreters is filled with complex interpersonal, linguistic and cultural challenges. The decisions and ethical dilemmas interpreters face on a daily basis are countless and the potential for disagreement regarding those decisions is great. Technology Mediated Dispute Resolution (TMDR) processes can be particularly helpful when misunderstandings and conflicts arise. Technology Mediated Dispute Resolution is a more inclusive phrase than Online Dispute Resolution (ODR) and includes cellular telephones, radio frequency devices, and satellite communication systems. The Deaf Community has learned to adapt and rely upon a variety of technologies and, because many Deaf individuals already …

Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine

Articles

"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even …

On The Face Of It? Establishing Jurisdiction On Claims To Compel Arbitration Under Section 4 Of The Faa, Leda Moloff

Fordham Law Review

Section 4 of the Federal Arbitration Act enables a party with an arbitration agreement to bring suit to compel arbitration if the dispute between parties is brought in court. The U.S. Courts of Appeals are split over how to establish jurisdiction when faced with a claim to compel arbitration. The disagreement centers on whether the court may “look through” to the underlying claim between parties to establish jurisdiction or whether establishment of jurisdiction must comply with the well-pleaded complaint rule, a rule requiring the petitioner to state the reason for jurisdiction on the face of their complaint to compel arbitration. …

Jung V. Skadden, Arps, Slate, Meagher & Flom, Zachary Kerner

NYLS Law Review

No abstract provided.

"Arbitration As A Final Award: Challenges And Enforcement" Published As Chapter 10 In International Sales Law And Arbitration: Problems, Cases, And Commentary, Jack M. Graves, Joseph F. Morrissey

Scholarly Works

No abstract provided.

Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel

Scholarly Works

The Supreme Court's decision in McMahon and its progeny has led many businesses and employers to embrace what was once deemed a localized, industry-specific practice. The "new" or "mass arbitration" only mildly resembles the traditional system employed by niches in industry for settling commercial matters among commercial actors. While the "old" system involved parties who were relatively equal in bargaining power and knowledge, these systems for mass arbitration lack a freely entered bargain and resemble more closely, contracts of adhesion. Privatized arbitration resolves issues of both statutory and substantive law, and there is a strong argument, given the inexperience of …

When Perception Changes Reality: An Empirical Study Of Investors' Views Of The Fairness Of Securities Arbitration, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Arbitration in securities industry-sponsored forums is the primary mechanism to resolve disputes between investors and their brokerage firms. Because it is mandatory, participants debate its fairness, and Congress has introduced legislation to ban pre-dispute arbitration clauses in customer agreements. Missing from the debate has been empirical research of perceptions of fairness by the participants, especially investors. To fill that gap, we mailed 25,000 surveys to participants in recent securities arbitrations involving customers to learn their views of the process. The article first details the survey's background, explains the importance of surveying perceptions of fairness, and describes our methodologies, procedures, and …

Expanding The Power Of U.S. Courts In Private International Arbitration - Moderation Loses To An Extreme, Amy Moore

Journal of Dispute Resolution

Since its inception, 28 U.S.C. § 17822 has been the subject of revisions, amendments, and much debate. This history is symptomatic of the evolving nature of United States presence in the international legal and business world; however, the statutory changes have not always been clear in purpose or application. In 2004, the Supreme Court granted certiorari for Intel Corp. v. Advanced Micro Devices, Inc., in order to solidify interpretation of § 1782's latest rendition, a 1964 congressional revision. Unfortunately, in expanding the accepted scope of § 1782, the Court created new ambiguity, especially in how the statute should relate to …

Securities Arbitrators Do Not Grow On Trees, Constantine N. Katsoris

Fordham Journal of Corporate & Financial Law

No abstract provided.

Contracting Out Of Process, Contracting Out Of Corporate Accountability: An Argument Against Enforcement Of Pre-Dispute Limits On Process, Meredith R. Miller

Scholarly Works

There have been many well-articulated and convincing critiques aimed at mandatory arbitration. Indeed, presently before Congress is proposed legislation titled the Arbitration Fairness Act, that would ban pre-dispute arbitration in the consumer, franchise and employment contexts. However, maligned as the plaintiff bar's pro-lawsuit legislation, the Arbitration Fairness Act is predicted to have very little chance of enactment. Consequently, across varying industries, the pre-dispute arbitration regime endures unheedingly. Thus, this Article sets aside the arguments aimed generally at pre-dispute arbitration clauses and, instead, sets its sights on some of the terms that seem to arise in such clauses. The focus here …

Working Toward Fair Treatment For Retail Investors, Barbara Black

Faculty Articles and Other Publications

Twenty years ago, in Shearson/American Express, Inc. v. McMahon, the Supreme Court held that brokerage firms could require their customers to arbitrate all their disputes in industry-sponsored fora - a decision that had great significance for the law of arbitration as well as securities regulation. In 1996, a blue-ribbon task force released its report, assessing the securities arbitration process at National Association of Securities Dealers, Inc. (NASD), the principal securities arbitration forum, and the report led to several symposia on the topic coinciding with the tenth anniversary of McMahon. Since then, arbitration scholars and practitioners have intensified the debate over …

Evolving Issues In Reinsurance Disputes: The Power Of Arbitrators, Robert W. Diubaldo

Fordham Urban Law Journal

This Article examines emerging areas of the law governing the following procedural powers of arbitrators that impact reinsurance arbitrations, as well as other commercial disputes: (i) consolidation; (ii) non-party discovery; (iii) confidentiality; (iv) summary adjudication; and (v) the enforceability of a hold harmless agreement. Inconsistency in judicial interpretation of arbitral powers significantly impacts the cost-effectiveness and overall efficiency of arbitration -- reasons the parties seek to arbitrate their commercial disputes in the first place.

Revolution In Law Through Arbitration, The Eighty-Fourth Cleveland-Marshall Fund Visiting Scholar Lecture , Thomas E. Carbonneau

Cleveland State Law Review

My subject is arbitration. I explore how its re-emergence during the last forty years has revolutionized the thinking about, and the practice of, law. The development of a "strong federal policy favoring arbitration" cast aside traditional acceptations about law and adjudication. The rule of law-the human civilization associated with law and the legal process-has been profoundly, perhaps irretrievably, altered by the rise of arbitration. The landmark cases in labor and employment arbitration-Alexander v. Gardner-Denver Company (the "old time religion") and Gilmer v. Interstate/Johnson Lane Corporation (the "new age"thinking)-attest to the enormous distance that separates past and present concepts of legal …

From Court-Surrogate To Regulatory Tool: Re-Framing The Empirical Study Of Employment Arbitration, W. Mark C. Weidemaier

W. Mark C. Weidemaier

Do Cognitive Biases Affect Adjudication?: A Study Of Labor Arbitrators (With Monica Biernat), Martin H. Malin, Monica Biernat

Martin H. Malin

Labor arbitrators were presented with four cases to decide, each involving a challenge to discipline or discharge of an employee resulting from a work-family conflict. Arbitrators were randomly given versions of the cases in which the gender and one other characteristivc of the employee were varied. The results showed little evidence of direct gender bias in decision-making but did reflect bias against single parents and employees with eldercare, as opposed to childcare, responsibilities. Implications for other adjudicators, including judges, jurors and administrative agency officials are discussed.

What Makes Securities Arbitration Different From Other Consumer And Employment Arbitration?, Stephen Ware

Stephen Ware

This short piece emphasizes what makes consumer and employment arbitration in the securities industry different from consumer and employment arbitration generally. Securities law imposes non-contractual duties to arbitrate on both broker-dealers and securities employees. I believe these laws are bad policy because they restrict contractual freedom. I conclude that securities arbitration should be contractual, like other arbitration.

Arbitration Law's Separability Doctrine After Buckeye Check Cashing, Inc. V. Cardegna, Stephen Ware

Stephen Ware

The recent case of Buckeye Check Cashing, Inc. v. Cardegna, is only the second Supreme Court decision applying the separability doctrine and it comes nearly forty years after the Court's first separability decision, Prima Paint Corp. v. Flood & Conklin Manufacturing Co. Arbitration's tremendous growth during those forty years - and the arrival of Buckeye - make this an opportune time to assess the current state of the separability doctrine. In doing that, this article will analyze Prima Paint and Buckeye and discuss the separability issues they leave unresolved. Finally, this article will critique the separability doctrine and call for …