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Articles 1 - 18 of 18
Full-Text Articles in Law
Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong
Reasoned Awards In International Commercial Arbitration: Embracing And Exceeding The Common Law-Civil Law Dichotomy, S. I. Strong
Michigan Journal of International Law
Unlike many types of domestic arbitration where unreasoned awards (often called “standard awards”) are the norm, international commercial arbitration routinely requires arbitrators to produce fully reasoned awards. However, very little information exists as to what constitutes a reasoned award in the international commercial context or how to write such an award. This lacuna is extremely problematic given the ever-increasing number of international commercial arbitrations that arise every year and the significant individual and societal costs that can result from a badly written award. Although this Article is aimed primarily at specialists in international commercial arbitration, the material is also useful …
The Influence Of Arbitrator Background And Representation On Arbitration Outcomes, Adam C. Pritchard, Stephen J. Choi, Jill E. Fisch
The Influence Of Arbitrator Background And Representation On Arbitration Outcomes, Adam C. Pritchard, Stephen J. Choi, Jill E. Fisch
Articles
We study the role of arbitrator background in securities arbitration. We find that several aspects of arbitrator background are correlated with arbitration outcomes. Specifically, industry experience, prior experience as a regulator, and status as a professional or retired arbitrator are correlated with statistically significant differences in arbitration awards. The impact of these characteristics is affected by whether the arbitrator in question serves as the panel chair and by whether the parties to the arbitration are represented by counsel. Our findings offer some preliminary insights into the debate over possible arbitrator bias. On the one hand, they suggest that the party …
Attorneys As Arbitrators, Adam C. Pritchard, Stephen J. Choi, Jill E. Fisch
Attorneys As Arbitrators, Adam C. Pritchard, Stephen J. Choi, Jill E. Fisch
Articles
We study the role of attorneys as arbitrators in securities arbitration. We find that arbitrators who also represent brokerage firms or brokers in other arbitrations award significantly less compensation to investor-claimants than do other arbitrators. We find no significant effect for attorney-arbitrators who represent investors or both investors and brokerage firms. The relation between representing brokerage firms and arbitration awards remains significant even when we control for political outlook. Arbitrators who donate money to Democratic political candidates award greater compensation than do arbitrators who donate to Republican can-didates. We also study the dynamics of panel interaction. We find that the …
The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity?, S. I. Strong
Michigan Journal of International Law
Before outlining the structure of this Article, it is useful to clarify two matters regarding definitions and scope. First, in the context of this Article, an "international class award" is an award resulting from an international class arbitration. There are three different types of international class arbitrations: (1) a class arbitration that includes at least one defendant from a country other than the seat of the arbitration, which means that enforcement of an award will have international implications; (2) a class arbitration that involves defendants that may be based in the arbitral forum but that also hold significant foreign assets …
Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine
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 …
David E. Feller: The Happy Warrior, Theodore J. St. Antoine
David E. Feller: The Happy Warrior, Theodore J. St. Antoine
Articles
Dave Feller and I first became acquainted when we were both union lawyers in Washington, D.C. Dave was the ultimate happy warrior. He went joyous into combat, and years later he could recount, joyously, objectively, and without rancor toward old foes, the exact details of the many triumphs and the few defeats. A favorite story came from his Supreme Court clerkship. Dave was already seven years out of Harvard Law School, with experience in university teaching, Army intelligence, and the Justice Department, and he didn't hesitate to tell Chief Justice Vinson he should vote for certiorari in a case close …
Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine
Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine
Articles
Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial discrimination. …
The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine
The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine
Articles
A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements, arbitration …
Arbitration And Judicial Review, Theodore J. St. Antoine
Arbitration And Judicial Review, Theodore J. St. Antoine
Other Publications
A quarter century ago, in a presentation at the Academy's annual meeting, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. That two-word phrase may be the only thing I ever said before this body that has been remembered. Unfortunately, it is almost invariably misunderstood. Time and again members have reproached me: "What's the big deal about contract reading, anyway? Isn't it just the same as contract interpretation?" Or, more substantively scathing: "Do you really think, Ted, that all you have to do to interpret a labor agreement is to …
Contract Reading' In Labor Arbitration, Theodore J. St. Antoine
Contract Reading' In Labor Arbitration, Theodore J. St. Antoine
Articles
A quarter century ago, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. This phrase has almost invariable been misunderstood to refer to reading or interpreting the contract. When I spoke of the "contract reader," it was in the context of judicial review of an award. My point was this: When a court has before it an arbitrator's award applying a collective bargaining agreement, it is as if the employer and the union had signed a stipulation stating: "What the arbitrator says this contract means is exactly what we meant …
Thomas G. S. Christensen, Theodore J. St. Antoine
Thomas G. S. Christensen, Theodore J. St. Antoine
Articles
Exactly twenty years ago, I had the privilege of introducing Tom Christensen at the annual meeting of the ABA's Labor Relations Law Section. I had not known Tom well for any length of time (I still feel hesitant about calling him "Chris"), but we shared similar backgrounds, and there had been and would continue to be numerous intersections in our careers. We both were kids from the hinterlands (Tom from Iowa, and I from Vermont) who had succumbed to the bright lights of the east coast. Tom had also published my very first article as a rookie law teacher.
Drafting The Dispute Resolution Clause, Whitmore Gray
Drafting The Dispute Resolution Clause, Whitmore Gray
Book Chapters
Providing in a contract for ways to resolve disputes that may arise presents a substantial challenge to the lawyer. In one sense, this is what a lawyer regularly does in contract drafting-anticipating misunderstandings or problems that experience has indicated are likely to arise, and trying to provide clear solutions in advance. When it comes to drafting a specific clause for the resolution of further disputes that may arise, however, many lawyers are at a substantial disadvantage. The task comes at the end of the substantive negotiations. The client does not want to focus on, or draw the other party's attention …
Afterword To Chicago-Kent Law Review, Theodore J. St. Antoine
Afterword To Chicago-Kent Law Review, Theodore J. St. Antoine
Articles
A unifying theme of this Symposium is as old and enduring as the common law: when and how can a well-established, successful adjudicative institution be adapted to meet the demands of new and substantially different situations? There have been splendid triumphs of transference, such as Lord Mansfield's appropriation of the law merchant in the eighteenth century as a major building block of modem commercial law. There have also been embarrassing failures, like the abortive effort to transport American labor law concepts en masse into the alien British environment of the early 1970s. The common question confronting the participants in this …
Deferral To Arbitration And Use Of External Law In Arbitration, Theodore J. St. Antoine
Deferral To Arbitration And Use Of External Law In Arbitration, Theodore J. St. Antoine
Articles
proper definition of the appropriate roles of arbitrators, administrative agencies and the courts depends in great part on the notion that, generally speaking, in labor relations, the interpretation and application of contracts is for arbitrators, and the interpretation and application of statutes is for the administrative agencies and the courts. Arbitrators deal primarily with contract rights and administrative agencies, like the NLRB and the courts, deal primarily with statutory rights. If that distinction is maintained, the problems of deferral to arbitration and the use of external law in arbitration can be more easily resolved.
Integrity And Circumspection: The Labor Law Vision Of Bernard D. Meltzer, Theodore J. St. Antoine
Integrity And Circumspection: The Labor Law Vision Of Bernard D. Meltzer, Theodore J. St. Antoine
Articles
Bernard Meltzer has testified under oath that he "rarely take[s] absolute positions." The record bears him out. While his colleagues among labor law scholars often strain to demonstrate that the labor relations statutes and even the Constitution support their hearts' desires, the typical Meltzer stance is one of cool detachment, pragmatic assessment, and cautious, balanced judgment. The "itch to do good," Meltzer has remarked wryly, "is a doubtful basis for jurisdiction" -or, he would likely add, for any other legal conclusion. In this brief commentary I propose to examine the Meltzer approach to four broad areas of labor law: (1) …
Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine
Judicial Review Of Labor Arbitration Awards: A Second Look At Enterprise Wheel And Its Progeny, Theodore J. St. Antoine
Articles
Logic, so the cliche goes, is not the life of the law. But logic is very much like the DNA of the law-the structural principle without which all is sprawl and muddle. In the last ten years a controversy has raged over the role of the labor arbitrator in issuing awards, and the role of the courts in reviewing and enforcing those awards. This controversy has largely taken the form of a continuing debate among scholars and practicing arbitrators at the annual meetings of the National Academy of Arbitrators. With due respect to the thoughtful and experienced persons who have …
Contracts - Arbitration And Award -Validity At Common Law Of Proceedings Void Under Arbitration Statutes, Edward H. Schlaudt
Contracts - Arbitration And Award -Validity At Common Law Of Proceedings Void Under Arbitration Statutes, Edward H. Schlaudt
Michigan Law Review
Defendant contracted with plaintiff to grade an athletic field. The contract required all questions subject to arbitration thereunder to be submitted to statutory arbitration at the choice of either party. A dispute arose and at the plaintiff's demand three arbitrators were selected as provided in the contract. Plaintiff sued to collect an award granted in his favor. Defendant objected that both the contract of submission and the proceedings fell far short of the statutory requirements. Held, though the parties agreed to arbitrate under the statute, the proceedings pursuant to the contract fell so far short of statutory requirements that …
Procedure - Service Of Process - Jurisdiction Conferred By Consent
Procedure - Service Of Process - Jurisdiction Conferred By Consent
Michigan Law Review
Plaintiff, a resident of England, and defendant, a resident of New York, entered into a contract for the sale and delivery of zinc. By a clause in the contract the parties agreed that all differences arising thereunder should be arbitrated at London pursuant to the arbitration law of Great Britain. Differences arose, and the plaintiff requested the defendant in New York to concur in the selection of an arbitrator, serving notice that, in the event of failure so to do, application would be made for appointment of one as provided by statute. This notice was ignored, and a form of …