Law Commons^™

What’S In The Contract?: Rockefeller, The Hague Service Convention, And Serving Process Abroad, Thomas G. Vanderbeek

Vanderbilt Law Review

Today’s global economy relies on transnational commerce. The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”), implemented in 1965, encouraged transnational commerce by establishing a streamlined mechanism for serving foreign parties with process. More reliable international service methods helped ensure parties that they could resolve disputes with foreign parties through the courts. The Hague Service Convention thus created a bridge between civil and common law procedures on service while reducing some of the risks of engaging in business with foreign parties.

At the same time, the Hague Service Convention frequently …

Play On? An Evaluation Of Fifa's Legal Regime And Its Foundation In Alternative Dispute Resolution, Blaine Sanders, J.D. Candidate, 2023

Vanderbilt Journal of Transnational Law

Few associate the Federation Internationale de Football Association, or FIFA, with its legal regime. Rather, and understandably so, sports fans and commentators tend to focus on World Cups, corruption, or even the FIFA video game. Yet, FIFA's role in the sport of soccer extends well beyond what receives the most commercial attention. FIFA shoulders the burden of regulating soccer's member associations, national teams, clubs, players, and countless other personnel through its FIFA Statutes. This is a considerable undertaking, which FIFA achieves through its comprehensive system of alternative dispute resolution.

Soccer is now a global business, largely due to the economic …

Inside The Arbitrator's Mind, Chris Guthrie, Susan D. Franck, Anne Van Aaken, James Freda, Jeffrey J. Rachlinski

Vanderbilt Law School Faculty Publications

Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …

Arbitration Clauses In Ceo Employment Contracts: An Empirical And Theoretical Analysis, Randall Thomas, Kenneth J. Martin, Erin O'Connor

Vanderbilt Law School Faculty Publications

A bill currently pending in Congress would render unenforceable mandatory arbitration clauses in all employment contracts. Some perceive these provisions as employer efforts to deprive employees of important legal rights. Company CEOs are firm employees, and, unlike most other firm employees, they can actually negotiate their employment contracts, very often with attorney assistance. Moreover, many CEO employment contracts are publicly available, so they can be examined empirically. In this paper, we ask whether CEOs bargain to include binding arbitration provisions in their employment contracts. After exploring the theoretical arguments for and against including such provisions in these agreements, we use …

Arbitration And Article Iii, Peter B. Rutledge

Vanderbilt Law Review

Arbitration implicates serious constitutional concerns that have not received adequate attention in case law or commentary. Recent litigation in the D.C. Circuit over the constitutionality of the North American Free Trade Agreement ("NAFTA") represents the most recent, high-profile example. A centerpiece of NAFTA and its implementing legislation is an arbitration mechanism that divests Article III courts of virtually all jurisdiction over countervailing duty and anti-dumping claims and invests that authority in panels of Associate Professor of Law, Columbus School of Law, Catholic University of America. Arbitration implicates serious constitutional concerns that have not received adequate attention in case law or …

Equitable Estoppel And The Compulsion Of Arbitration, Alexandra A. Hui

Vanderbilt Law Review

Freedom of contract is a longstanding principle deeply rooted in American jurisprudence, protected by the Contract Clause and by the Due Process Clauses of the Fifth and Fourteenth Amendments.' Because of the legal system's high regard for freedom of contract, parties are free to negotiate virtually all issues, thus creating rights and limiting duties and obligations to one another.

In exercising this freedom to contract, parties often negotiate an arbitration clause. These clauses, also referred to as "predispute arbitration agreements," are contractual provisions agreed to in advance of any dispute that require a party to submit any and all future …

Arbitration Costs And Contingent Fee Contracts, Christopher R. Drahozal

Vanderbilt Law Review

A common criticism of arbitration is that its upfront costs (arbitrators' fees and administrative costs) may preclude consumers and employees from asserting their claims. Some commentators have argued further that arbitration costs undercut the benefits to consumers and employees of contingent fee contracts, which permit the claimants to defer payment of attorneys' fees and litigation expenses until they prevail in the case (and if they do not prevail, avoid such costs altogether). This paper argues that this criticism has it exactly backwards. Rather than arbitration costs interfering with the workings of contingent fee contracts, the contingent fee mechanism provides a …

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 …

Setting Arbitrators' Fees: An International Survey, John Y. Gotanda

Vanderbilt Journal of Transnational Law

This Article examines the compensation policies of international arbitrators. Specifically, the Article details the results of a survey of individuals who practice in the area of international arbitration.

Initially, the Article describes the different methods of calculating the fees of the arbitral tribunal, discussing the relative advantages and disadvantages of each method. The study concludes that most arbitrators calculate their fees using a time-based method, except when the arbitral institution requires that their fees be determined under the ad valorem method.

Next, the Article examines arbitrators' policies regarding cancellation and commitment fees. Survey results highlighted confusion about whether arbitrators were …

Introduction: Current Issues In Arbitration, Shannon E. Pinkston

Vanderbilt Law Review

"[An incompetent attorney can delay a case for years, while a competent attorney can delay it for even longer."'

This oft-repeated joke illustrates the public perception of the delays and expense that accompany courtroom litigation. Indeed, growing frustration with crowded courts and exorbitant legal costs fuels the widespread Alternative Dispute Resolution ("ADR") movement. Notwithstanding the dramatic increase in its use, ADR, defined as "procedures for settling disputes by means other than litigation," is not a novel idea. In fact, ADR was present in America as early as the seventeenth century. In certain parts of colonial America, voluntary arbitration was a …

International Transactions And Claims Involving Government Parties: Case Law Of The Iran-United States Claims Tribunal, Richard M. Mosk Reviewer, Nils Mangard Reviewer, Koorosh H. Ameli Reviewer

Vanderbilt Journal of Transnational Law

International Transactions and Claims Involving Government Parties: Case Law of the Iran-United States Claims Tribunal

By John A. Westberg

International Law Institute

Washington, D.C.: 1991. Pp. 412. $125.

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Richard M. Mosk - reviewer

Nils Mangard - reviewer

Koorosh H. Ameli - reviewer

Deceptive Negotiating And High-Toned Morality, Walter W. Steele, Jr.

Vanderbilt Law Review

Rising concern about the adequacy of the adversary system to deal with disputes quickly, fairly, and economically has led to increased interest in a broad range of alternate dispute resolution mechanisms such as arbitration and the use of mini-trials. Presently, however, negotiation between disputants or negotiation between counsel for disputants is the best understood and most often utilized alternative to litigation. In fact, negotiating prior to litigating is so pervasive that it might be thought of as an inherent part of the litigation process. From a lawyer's perspective, an advantage of negotiation over other forms of dispute resolution is that …

The Use Of Arbitration In The Settlement Of Bilateral Air Rights Disputes, Ross T. Dicker

Vanderbilt Journal of Transnational Law

In the field of aviation, world transportation is bound together by a highly complex and sophisticated arrangement in which each country designates a single carrier to carry its flag to foreign-countries. The United States has not followed this practice of designating one line as the nation's flag carrier and has twenty "international" carriers which transport passengers, cargo, and mail to foreign countries. Each one of these carriers is a private business concern, competing in most cases with another American carrier covering the same route, and in all cases with the air carrier of the country to which it flies. In …

Drafting Of Grievance And Arbitration Articles Of Collective Bargaining Agreements, Charles A. Reynard

Vanderbilt Law Review

When the parties to collective bargaining negotiations formulate the provisions of their contract relating to grievances and arbitration, they are establishing the basic system of private administrative law that will govern the plant community for the period of the agreement. This is obviously a task that involves more than mere words and phrases. The maturity of their relationship, their respective understandings of the place of collective bargaining in our industrial society, the size and nature of the plant, and innumerable other considerations will substantially influence the choice of language and procedures adopted in the framing of these provisions. Because of …

Some Comments On Arbitration Legislation And The Uniform Act, Maynard E. Pirsig

Vanderbilt Law Review

Common-law arbitration rests upon a voluntary agreement of the parties to submit their dispute to an outsider. The submission agreement may be oral and may be revoked at any time before the rendering of the award. The tribunal, permanent or temporary, may be composed of any number of arbitrators. They must be free from bias and interest in the subject matter and may not be related by affinity or consanguinity to either party. The arbitrators need not be sworn. Only existing disputes may be submitted to them. The parties must be given notice of hearings and are entitled to be …

Vacation Of Awards For Fraud, Bias, Misconduct And Partiality, Alan H. Rothstein

Vanderbilt Law Review

The role of the arbitration process in today's society is to supplant the often laborious and time consuming procedures of the courts with a more informal process wherein the parties to a controversy, by agreement, give one or more individuals effective power to render a decision on a particular matter, or on future controversies as they arise. In order that the grant of the power be effective, and that a resulting award be obeyed, the courts will generally enforce a properly made award without examination of the underlying issues or evidence of the controversy developed during the arbitration. Judicial prescriptions …

A Symposium On Arbitration, Sylvan Gotshal

Vanderbilt Law Review

Twenty years ago an article on arbitration would have been an oddity in a law review. Significant of the change in thinking with regard to arbitration on the part of attorneys, bar associations, and law schools is the fact that within the past few months several law journals and reviews have had major articles devoted to various aspects of arbitration. This new literature in the legal field serves as notice to the practitioner and to the law student that arbitration has come of age. The editors of the Vanderbilt Law Review and the faculty of the Law School are, therefore, …

Act Relating To Arbitration And To Make Uniform The Law With Reference Thereto, Law Review Staff

Vanderbilt Law Review

A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. This act also applies to arbitration agreements between employers and employees or between their respective representatives (unless otherwise provided in the agreement.)

Book Notes, Law Review Staff

Vanderbilt Law Review

The Law of Torts By Fowler V. Harper and Fleming James, Jr. Boston: Little Brown & Co., 1956. Pp. xiv, 2062. $60.00.

This treatise is a valuable and significant contribution to Tort law.It is composed of two volumes of text and a third volume containing tables of cases, statutes and articles, and an index.

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Management Rights and the Arbitration Process

Edited by Jean T. McKelvey. Washington: Bureau of National Affairs, 1956. Pp. viii,237. $3.50. This is a collection of the papers delivered at the Ninth Annual Meeting of the National Academy of Arbitrators held in January,1956. They include treatments …