Open Access. Powered by Scholars. Published by Universities.®

Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

Arbitration

2005

Discipline
Institution
Publication
Publication Type
File Type

Articles 1 - 30 of 42

Full-Text Articles in Law

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble:" A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N. C. Smalkin Nov 2005

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble:" A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N. C. Smalkin

Faculty Scholarship

Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary’s “loss of focus” on the core function of trying jury cases; the business community’s loss of interest in jury adjudication (“opting out of the legal system altogether” in favor of arbitration); Congress’s “marginalizing the district court judiciary”; and …

Go to article

Construction Law, K. Brett Marston, J. Barrett Lucy Nov 2005

Construction Law, K. Brett Marston, J. Barrett Lucy

University of Richmond Law Review

Since the last survey of this topic published in the fall of 2000, construction law in Virginia has continued to evolve in an array of areas involving issues such as claims on surety bonds, claims against public entities, construction-related products like Exterior Insulation Finishing Systems ("EIFS"), and mechanic's liens. These changes have implicated and better defined legal principles including the "no damage for delay" clause on public contracts, requirements for privity in breach of warranty claims, and implied indemnification. The significant issues in construction law have arisen both in a number of significant judicial decisions, mostly from the Supreme Court …

Go to article

California’S New Ethics Standards: A Hot Bed Of Controversy, Rebecca Callahan Oct 2005

California’S New Ethics Standards: A Hot Bed Of Controversy, Rebecca Callahan

ExpressO

The article examines California’s new ethics rules and examines the cases which have been decided to date challenging and applying those rules. The stated goals of the New Ethics Rules are “to inform and protect participants in arbitration, and to promote public confidence in the arbitration process.” This is a laudable goal since arbitration is a private process that is dependent on public acceptance. The heart of the controversy concerning the New Ethics Rules revolves around the practical inconvenience and cost burden associated with compliance. The enclosed article concludes that such a burden goes hand-in-hand with the privilege of being …

Go to article

The Nature And Enforcement Of Investor Rights Under Investment Treaties: Do Investment Treaties Have A Bright Future, Susan Franck Oct 2005

The Nature And Enforcement Of Investor Rights Under Investment Treaties: Do Investment Treaties Have A Bright Future, Susan Franck

Articles in Law Reviews & Other Academic Journals

The number of investment treaties has surged in the past decade. Even now, the United States and Canada are actively engaged in programs designed to facilitate the completion of multilateral treaties such as the Dominican Republic-Central American Free Trade Agreement (CAFTA-DR) and Bilateral Investment Treaties (BITs). These investment treaties act like economic bills of rights, which grant foreign investors substantive protections and procedural rights to facilitate investment. Sovereigns, meanwhile, may benefit from these treaties by obtaining increased foreign direct investment, which may promote the development of their country's infrastructure 6 and offer citizens basic services including access to clean water, …

Go to article

Market Solutions To Market Problems: Re-Examining Arbitral Immunity As A Solution To Unfairness In Securities Arbitration, Peter B. Rutledge Oct 2005

Market Solutions To Market Problems: Re-Examining Arbitral Immunity As A Solution To Unfairness In Securities Arbitration, Peter B. Rutledge

Scholarly Works

This paper addresses the fairness of securities arbitrations in the United States. A few decades ago, such a topic would have been relegated to the academic hinterlands. For the first fifty years following the enactment of the nation's securities laws, pre-dispute arbitration agreements between investors and the securities industry were not enforceable. In a series of decisions in the late 1980s, the Supreme Court reversed course and held that such disputes were indeed arbitrable. Following those decisions, arbitration quickly became the preferred method of dispute resolution for cases arising under the nation's securities laws, especially disputes between investors and broker-dealers. …

Go to article

Sailing Around Erie:The Emergence Of A Federal General Common Law Of Arbitration, Kenneth Dunham Aug 2005

Sailing Around Erie:The Emergence Of A Federal General Common Law Of Arbitration, Kenneth Dunham

ExpressO

This paper traces the history of American arbitration from the common law to the FAA. It discusses the FAA as a procedural act prior to Southland v. Keating and as a substantive law act following Southland. It discusses the Erie doctrine as applicable to federal courts and state law preemption. The article concludes that Southland by-passed Erie using the Commerce Clause and the Supremacy Clause to create a federal common law of arbitration.

Go to article

International Arbitration Is Not Your Father's Oldsmobile, Kenneth F. Dunham Jul 2005

International Arbitration Is Not Your Father's Oldsmobile, Kenneth F. Dunham

Journal of Dispute Resolution

This article provides a short prospectus for the unwary lawyer who must venture into unfamiliar territory abroad. Although there are numerous arbitral forums available in countries all over the world, this article will focus primarily on the LCIA and the ICC. Following a brief history of international arbitration and the history of these two international arbitral forums, the article will discuss some of the major issues in international arbitration such as forum selection, issue preclusion and procedural matters. This article also includes sections on appealing awards and enforcement of awards under existing international treaties. The article is brought to a …

Go to article

Everybody Loves Arbitration: The Second Circuit Sets Pro-Arbitration Precedent In International Commercial Arbitration Cases, Jasen Matyas Jul 2005

Everybody Loves Arbitration: The Second Circuit Sets Pro-Arbitration Precedent In International Commercial Arbitration Cases, Jasen Matyas

Journal of Dispute Resolution

Phoenix Aktiengesellschaft v. Ecoplas, Inc. presented the Second Circuit with an unresolved question of preemption in international arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention). The court specifically addressed the issue of whether the consent-to-confirmation requirement of section 9 of the Federal Arbitration Act (FAA) conflicted with section 207 of the FAA which does not require such consent. Section 208 incorporates Chapter 1 provisions to the extent that such provisions are not in conflict with Chapter 2. Phoenix held that the two provisions were in conflict, and consent-to-confirmation is not incorporated into Chapter 2. …

Go to article

Rules For A New Game: Finding A Workable Solution For Applying Class Actions To The Arbitration Process, Andrew Remy Norton Jul 2005

Rules For A New Game: Finding A Workable Solution For Applying Class Actions To The Arbitration Process, Andrew Remy Norton

Journal of Dispute Resolution

In 2003, the Supreme Court's decision in Green Tree Financial Corp. v. Bazzle, indicated that class-wide arbitration was permissible. As a result the number of cases of class-wide arbitration is likely to increase. Because of the few courts that have actually employed class-wide arbitration it has not been definitively settled as to how the hybrid procedure should be conducted. One school of thought emphasizes the class members' due process rights, while another argues that maintaining the integrity of the arbitration process should be a priority. This casenote analyzes the two separate theories and attempts to devise a workable solution for …

Go to article

Pro-Arbitration Policy: Is This What The Parties Really Intended - The Courts' Treatment Of Forum Selection Clauses In Arbitration Agreements, The, Lance Roskens Jul 2005

Pro-Arbitration Policy: Is This What The Parties Really Intended - The Courts' Treatment Of Forum Selection Clauses In Arbitration Agreements, The, Lance Roskens

Journal of Dispute Resolution

In today's global economy, it is not uncommon for parties from different locations to contract together both in commerce and in employment. Especially in the context of employers, one party will often want any and all disputes it has with its employees to be resolved via arbitration in a certain forum. To accomplish this, employers often include a forum selection clause in the arbitration agreement with the future employee. Thus, if and how courts address forum selection clauses is of paramount importance to employers. In Sterling Financial Investment Group, Inc. v. Hammer, the 11 th Circuit Court of Appeals were …

Go to article

Arbitrability Of Arbitrability, The, Michelle St. Germain Jul 2005

Arbitrability Of Arbitrability, The, Michelle St. Germain

Journal of Dispute Resolution

If you can read the following only once and understand it, consider yourself part of a very small minority: "It is the dilemma of the box within a box or, in the case of arbitration, the authority as to the decision as to the authority to make the decision." That is "arbitrability" in a nutshell; not a simple concept. Indeed, at oral argument in First Options of Chicago, Inc. v. Kaplan, the confusion occurred to a U.S. Supreme Court Justice.

Go to article

The Next Generation Of Medical Malpractice Dispute Resolution: Alternatives To Litigation, Ellenwood F. Oakley Iii Jun 2005

The Next Generation Of Medical Malpractice Dispute Resolution: Alternatives To Litigation, Ellenwood F. Oakley Iii

Georgia State University Law Review

No abstract provided.

Go to article

An Evaluation Of Current Legitimacy-Based Objections To Nafta's Chapter 11 Investment Dispute Resolution Process, Naveen Gurudevan May 2005

An Evaluation Of Current Legitimacy-Based Objections To Nafta's Chapter 11 Investment Dispute Resolution Process, Naveen Gurudevan

San Diego International Law Journal

The year 1994 saw the conclusion of a very important trilateral trade and investment treaty in North America: the North American Free Trade Agreement. Since then, this agreement has had a tremendous impact on the trading relations among the three signatory states-the United States, Canada, and Mexico. Of particular significance is Chapter 11, the Investment Chapter. One of the main objectives of Chapter 11 is to provide an effective means for the resolution of disputes between a foreign investor and the host government. To this end, it provides a mechanism whereby private parties can initiate arbitration proceedings against the host …

Go to article

An Arbitrator's Authority To Award Attorney Fees For Bad-Faith Arbitration, Thomas V. Burch May 2005

An Arbitrator's Authority To Award Attorney Fees For Bad-Faith Arbitration, Thomas V. Burch

Thomas V. Burch

No abstract provided.

Go to article

Market For Private Dispute Resolution Services - An Empirical Re-Assessment Of Icann-Udrp Performance, The, Jay P. Kesan, Andres A. Gallo Apr 2005

Market For Private Dispute Resolution Services - An Empirical Re-Assessment Of Icann-Udrp Performance, The, Jay P. Kesan, Andres A. Gallo

Michigan Telecommunications & Technology Law Review

We present a thorough analysis of one of the ADR regimes that is considered a significant success in Internet markets, the Uniform Dispute Resolution Policy (UDRP) implemented by the Internet Corporation for Assigned Names and Numbers (ICANN). In this work, we perform a complete empirical analysis of the UDRP and evaluate its performance. We then extrapolate the results to other sectors of the Internet market and to private dispute resolution in general.[...] In this paper, we thoroughly critique the performance of the UDRP providers and identify the main variables that determine ICANN's efficiency. For example, one of the key variables, …

Go to article

The Bench Trial: A More Beneficial Alternative To Arbitration Of Title Vii Claims, Dianne Larocca Apr 2005

The Bench Trial: A More Beneficial Alternative To Arbitration Of Title Vii Claims, Dianne Larocca

Chicago-Kent Law Review

An increasing percentage of the workforce in the United States is covered by pre-dispute mandatory arbitration agreements through which employees waive their right to bring suit under Title VII. Although these agreements are an important avenue for the resolution of disputes between employers and employees, these agreements have proved unsatisfactory. In this Article, I describe the advantages and disadvantages of arbitration agreements for employers and employees. I then explore whether pre-dispute mandatory arbitration agreements through which employees waive their right to a jury trial and agree to a bench trial of their Title VII claims are a more beneficial alternative. …

Go to article

Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben Apr 2005

Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben

Faculty Publications

Scholars have approached arbitration, especially under the Federal Arbitration Act, from a variety of perspectives, including doctrinal, historical, empirical, and practical. One aspect that has not yet been fully considered, however, is the relationship between arbitration and constitutional democracy. Yet, as a dispute-resolution process that is often sanctioned by the government, that sometimes inextricably intertwines governmental and private conduct, and that derives its legitimacy from the government, it is appropriate--indeed, our responsibility--to ask whether arbitration furthers the goals of democratic governance. It is only sensible that state-supported dispute resolution in a democracy should strengthen, rather than diminish, democratic governance and …

Go to article

Deterrence And Implied Limits On Arbitral Power, Michael A. Scodro Mar 2005

Deterrence And Implied Limits On Arbitral Power, Michael A. Scodro

All Faculty Scholarship

No abstract provided.

Go to article

Deterrence And Implied Limits On Arbitral Power, Michael A. Scodro Mar 2005

Deterrence And Implied Limits On Arbitral Power, Michael A. Scodro

Michael A. Scodro

No abstract provided.

Go to article

The Legitimacy Crisis In Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, Susan Franck Mar 2005

The Legitimacy Crisis In Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions, Susan Franck

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Go to article

Major Lenders' May Violate Due Process By Enforcing One-Sided Arbitration Contracts To Avoid Borrowers' Defenses To Foreclosure, Lynn E. Cunningham Feb 2005

Major Lenders' May Violate Due Process By Enforcing One-Sided Arbitration Contracts To Avoid Borrowers' Defenses To Foreclosure, Lynn E. Cunningham

ExpressO

ARTICLE SUMMARY: Many major, contemporary players in the huge sub-prime U.S. mortgage lending market require their borrowers to execute loan agreement riders requiring arbitration of all disputes with regard to the loan transaction, but with the significant exception of the lender’s right to foreclose. While such agreements have frequently been challenged on unconscionability grounds, enforcement of the ex parte aspects of such contracts also raises concerns about compliance with procedural aspects of the Due Process Clause, when either lender enforcement of the loan agreement itself or foreclosure is sought through the courts. Foreclosure normally occurs more promptly than arbitration, and …

Go to article

Party Autonomy In Choice Of Commercial Law: The Failure Of Revised U.C.C. § 1-301 And A Proposal For Broader Reform, Jack M. Graves Jan 2005

Party Autonomy In Choice Of Commercial Law: The Failure Of Revised U.C.C. § 1-301 And A Proposal For Broader Reform, Jack M. Graves

Scholarly Works

No abstract provided.

Go to article

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N.C. Smalkin Jan 2005

The Market For Justice, The "Litigation Explosion," And The "Verdict Bubble": A Closer Look At Vanishing Trials, Frederic N. Smalkin, Frederic N.C. Smalkin

All Faculty Scholarship

Recently, a respected jurist has lamented the declining number of federal jury trials. Chief Judge William Young of the United States District Court for the District of Massachusetts, writing in the Federal Lawyer, pointed out that jury trials in federal civil cases declined 26% in the decade between 1989 and 1999, which he attributed to four factors: the district court judiciary's loss of focus on the core function of trying jury cases; the business community's loss of interest in jury adjudication (opting out of the legal system altogether in favor of arbitration); Congress's marginalizing the district court judiciary; and the …

Go to article

Mobile Home Mania? Protecting Procedurally Fair Arbitration In A Consumer Microcosm, Amy J. Schmitz Jan 2005

Mobile Home Mania? Protecting Procedurally Fair Arbitration In A Consumer Microcosm, Amy J. Schmitz

Faculty Publications

Consumers' lack of warranty remedies prompted Congress to enact the 2000 Manufactured Housing Improvement Act (MHIA). Under the Act, the Office of Housing and Urban Development (HUD) must develop a program for resolving MH warranty disputes by the end of 2005. This article provides input regarding that program. It also calls for broader protection of procedural fairness in arbitration of disputes regarding warranties for mobile or manufactured homes (referred to in the article as MHs for ease of reference). Although HUD's program aims to create a process for resolving warranty disputes among manufacturers, dealers and installers, this article proposes that …

Go to article

Keep Your Eye On The Pelota: Sports Arbitration At The Jai-Alai Fronton, Roger I. Abrams Jan 2005

Keep Your Eye On The Pelota: Sports Arbitration At The Jai-Alai Fronton, Roger I. Abrams

Marquette Sports Law Review

No abstract provided.

Go to article

Rules Of A Sport- Specific Arbitration Process As An Instrument Of Policy Making, Hilary A. Findlay Jan 2005

Rules Of A Sport- Specific Arbitration Process As An Instrument Of Policy Making, Hilary A. Findlay

Marquette Sports Law Review

No abstract provided.

Go to article

The Role Of Arbitrability In Disciplinary Decisions In Professional Sports, Thomas A. Baker Iii, Dan Connaughton Jan 2005

The Role Of Arbitrability In Disciplinary Decisions In Professional Sports, Thomas A. Baker Iii, Dan Connaughton

Marquette Sports Law Review

No abstract provided.

Go to article

Alternative Dispute Resolution In Sports Facility Leases, Martin J. Greenberg Jan 2005

Alternative Dispute Resolution In Sports Facility Leases, Martin J. Greenberg

Marquette Sports Law Review

No abstract provided.

Go to article

The Vocation Of International Arbitrators, Catherine A. Rogers Jan 2005

The Vocation Of International Arbitrators, Catherine A. Rogers

Journal Articles

This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often …

Go to article

Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers Jan 2005

Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers

Journal Articles

Some scholars have protested that arbitrators are subject to less exacting regulation than barbers and taxidermists. The real problem with international arbitrators, however, is not that they are subject to less regulation, but that no one agrees about how they should be regulated. The primary reason for judicial and scholarly disagreement is that, instead of a coherent theory, analysis of arbitrator conduct erroneously relies on a misleading judicial referent and a methodologic failure to separate conduct standards (meaning those norms or rules that guide arbitrators' professional conduct) from enforcement standards (meaning those narrow grounds under which an arbitral award can …

Go to article

Next Last