Contracts Commons^™

Arbitration In Name Only, Myriam Gilles

Northwestern University Law Review

Modern arbitration clauses hide a dirty secret: many don’t actually provide for genuine arbitration. These provisions masquerade as mutual commitments to fair and efficient private dispute resolution but, in truth, are mere imitations of genuine arbitration provisions. Some reserve for the drafter the power to amend or terminate the clause at will without notice or consent; others design the arbitration process to ensure bias from the start; still others depart so radically from the bilateral, informal model blessed by the Supreme Court that they scarcely resemble arbitration at all. These arrangements are arbitration in name only, falling outside the Federal …

A Look Inside The Nba’S Game-Changing Technical Foul: The Warner Bros. Discovery And Nba Broadcast Rights Dispute And How It Could Have Been Resolved Through Alternative Dispute Resolution, Nicola Coates

Pepperdine Dispute Resolution Law Journal

Despite being “the greatest studio show in sports TV history” and winning numerous Emmy Awards, the TNT Sports icon Inside the NBA was on the brink of disappearing. In 2024, the National Basketball Association (NBA) opted into a $77 billion contract with NBC, Amazon, and Disney’s ESPN, ending its forty-year relationship with Warner Brothers Discovery (Warner Bros. Discovery), the parent company of TNT Sports. Warner Bros. Discovery filed suit, alleging that, by rejecting its offer in favor of NBC, Amazon, and Disney, the NBA breached the parties’ 2014 media rights agreement, which included a right to match third-party offers. The …

The Extension Of The Arbitration Clause To Non-Signatories In Qatar's Construction Arbitration: A Study Under Law No. 2 Of 2017, Nazir Hasen Ikhlayel

Maurer Theses and Dissertations

This dissertation examines whether an arbitration clause in a construction contract governed by Qatar Arbitration Law No. 2 of 2017 can be extended to a non-signatory party. The study addresses a problem that arises in major construction projects, in which employers, main contractors, subcontractors, consultants, and suppliers are linked by separate yet interdependent contracts. At the same time, arbitration remains structured around bilateral consent.

The importance of the study lies in its relevance to Qatar’s legal and economic development. Qatar’s major infrastructure projects, including those accelerated by the 2022 FIFA World Cup and those continuing under Qatar National Vision 2030, …

The Arbitration Web Ensnaring Every Consumer: The Next Evolution In Corporate Strategy To Compel Arbitration, Michael Conklin

Maine Law Review

This first-of-its-kind Article uses a novel hypothetical to explore the expanding role of compelled arbitration. The hypothetical involves numerous large corporations agreeing to cross-reference each other in their arbitration agreements, thus attempting to create a massive arbitration web ensnaring nearly every American and allowing corporations to compel arbitration against parties with whom they never interacted. This Article presents the case that courts might enforce such a scheme based on the judicial trend toward ever-expanding compelled arbitration jurisprudence, the docket-clearing incentives faced by judges, existing case law allowing some non-signatories to enforce arbitration agreements, the strong assumption in favor of arbitration, …

Delivery Drivers Deserve The Whole Package: Package Delivery Drivers And The Transportation Worker Exemption Of The Federal Arbitration Act, Evan Kelly

Catholic University Law Review

Package delivery is a ubiquitous part of modern American life, and package delivery driving is a fast-growing occupation in the United States. These drivers work long hours in a fast-paced, highly regimented environment, and because of arbitration agreements they are made to sign, they often cannot go to court to settle disputes with their employers. Under the Federal Arbitration Act (FAA), these arbitration agreements are generally “valid, irrevocable, and enforceable.” However, the FAA includes an exemption (known as the “Transportation Worker exemption”) that excludes arbitration agreements in “contracts of employment for seamen, railroad employees, or any other class of worker …

Consumer Protection And The Illusory Promise Of The Unconsciounability Defense, Benjamin C. Zipursky, Zahra Takhshid

Sturm College of Law: Faculty Scholarship

The United States Supreme Court’s notorious decision in AT&T Mobility LLC v. Concepcion seems to display impatience with the idea of an unconscionability defense to the enforcement of a contract. At the core of Justice Antonin Scalia’s opinion, however, was not an argument against the idea of unconscionability per se, but an argument against using “unconscionability” as a cover for a broader public policy agenda. This interpretation is confirmed by the Court’s little-known decision in Marmet Health Care Ctr., Inc. v. Brown, handed down the term after Concepcion was decided. Plaintiffs were allowed to move forward in Marmet because the …

Repeal The Federal Arbitration Act's "Arising Out Of" Requirement, Stephen J. Ware

American University Business Law Review

Suppose Pfizer and CVS agree to arbitrate not only any disputes that might arise out of their contract containing an arbitration agreement but also any disputes that might arise out of any of the many earlier contracts between these two large corporations. Or Apple and Samsung agree to arbitrate any patent infringement claims either has against the other for the next five years. Or FedEx and UPS agree to arbitrate any tort claims either has against the other due to any collision of their vehicles in the next ten years. Or members of the Walton (Walmart) family agree to arbitrate …

Decentralized Dispute Resolution: Using Blockchain Technology And Smart Contracts In Arbitration, Christoph Salger

Pepperdine Dispute Resolution Law Journal

Can blockchain technology and smart contracts be used in the context of alternative dispute resolution, particularly arbitration, turning traditional procedures on their head? This article discusses various possible applications of blockchain technology and smart contracts in ADR. In particular, it addresses the possibility of fully automated execution of arbitral awards using a smart contract through so-called escrow mechanisms. Subsequently, it presents two promising approaches of so-called Decentralized Dispute Resolution (DDR), including Expert-Pooling and Crowdarbitration. DDR generally involves decisions made jointly by multiple or even all participants in a network (usually a blockchain network), rather than by just one or two …

The Sources And Consequences Of Disputes Over Contractual Meaning, Randy D. Gordon

Faculty Scholarship

With some frequency, parties agree to the particular words used in a contract they sign, only to later disagree as to the meaning of those words and their legal effect. That is, they each assent to something, but that “something” is something different for each of them. In this Article, I first categorize and trace the sources of recurring points of disagreement as a matter of language and linguistics. Then, I look at the consequences of a dispute that leads a fact finder to conclude that the parties genuinely did not agree to the same thing, which is to say …

Arbitration's Unraveling, Myriam E. Gilles

Articles

It has been over a decade since the Supreme Court declared that the Federal Arbitration Act preempts state-law policies that stand as an obstacle to enforcement of the class-banning arbitration clauses that companies tuck into standard-form contracts. In that time, plaintiffs’ lawyers have tried challenging class action–banning arbitration provisions on myriad legal grounds, as well as pressing for federal and state legislation to undo the Court’s ruling in AT&T Mobility LLC v. Concepcion. Neither strategy has borne much fruit—until now. In the past few years, congressional action has exempted specific categories of cases from mandatory arbitration, suggesting that an area-by-area …

We Are Never Getting Back Together: A Statutory Framework For Reconciling Artist/Label Relationships, Harrison Simons

Washington Law Review Online

Taylor Swift could tell you a thing or two about record label drama. Artists like Swift who want to break into the big leagues and top the charts must rely on record labels’ deep pockets and institutional knowledge to do so. But artists, especially young ones, are often asked to sign deals with labels that leave them with little control over their careers. For many, the risk is worth the reward. However, many others come to regret their decision, with careers that languish or sputter out in label purgatory. Anyone with an ear for the music industry knows that artist-label …

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 …

Alternatif Penyelesaian Sengketa Ekonomi Syariah Melalui Badan Arbitrase Syariah Nasional Dan Lembaga Alternatif Penyelesaian Sengketa Dalam Prospek Perkembangan Ekonomi Syariah Di Indonesia, Baiq Inti Dhena Sinayang

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The increasing number of sharia economic disputes as a result of sharia economic development causes alternative dispute resolution to be an option in resolving sharia disputes. Basyarnas and LAPS-OJK are sharia economic dispute resolution forums outside of litigation. From the results of the research, it is known that the National Basyarnas need to be strengthened against the implications of the unregistered Basyarnas in the LAPS-POJK list after the issuance of POJK No. 61 of 2020 jo. POJK No. 1 of 20014 concerning LAPS in the financial services sector. The mechanism for dispute resolution procedures at Basyarnas starts from the request …

Race & International Investment Law: On The Possibility Of Reform And Non-Retrenchment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The international investment regime is in flux. The mainstream practice of investment law and arbitration works on the basis of the regime’s foundations in contract and property law. However, critical scholarship in the field has unearthed the coloniality of power that permeates both the practice of international investment law and the current reform exercise led by the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. These critical scholars warn of the imminent reproduction and entrenchment of the systemic inequities, power asymmetries, and investment law’s investor-state dispute settlement (ISDS) regime which is skewed against post-colonial host states. The …

The Property Law Of Tokens, Juliet M. Moringiello, Christopher K. Odinet

Faculty Scholarship

Non-fungible tokens—or NFTs, as they are better known—have taken the world by storm. The idea behind an NFT is that by owning a certain thing (specifically, a digital token that is tracked on a blockchain), one can hold property rights in something else (either a real or intangible asset). In the early part of 2021, NFTs for items ranging from a gif of a pop-tart cat with a rainbow tail, to Twitter CEO Jack Dorsey’s first tweet, to a New York Times column (about NFTs!) have sold for millions of dollars over the internet. Promoters assert that NFTs are the …

Contract Law—Conspicuous Arbitration Agreements In Online Contracts: Contradictions And Challenges In The Uber Cases, Matthew Hoffman

University of Arkansas at Little Rock Law Review

No abstract provided.

But We Didn’T Agree To That!: Why Class Proceedings Should Not Be Implied From Silent Or Ambiguous Arbitration Clauses After Lamps Plus, Inc. V. Varela, Andrea Demelo Laprade

Catholic University Law Review

The application of class arbitrability when a contract is silent on the matter remains a mystery. The Supreme Court has not clarified its stance on class arbitrability and preemptive effects of the Federal Arbitration Act on state law when applied to determine if class arbitrability is available. The purpose of this Paper is to address how the Lamps Plus v. Varela decision created more confusion about the question of class arbitrability. It argues that the failure to address the particulars of the availability of class arbitration will perpetuate litigation on this issue. This Paper suggests that the FAA’s purpose supports …

Class Arbitration Waivers Cannot Be Found Unconscionable: A Pervasive And Common "Mis-Concepcion", Emma Silberstein

Northwestern University Law Review

In 1925, Congress enacted the Federal Arbitration Act (FAA) as a means of quelling judicial hostility towards arbitration agreements, providing a mechanism for the enforcement of such agreements. The Supreme Court’s treatment and application of the FAA has evolved over time, and in recent decades the FAA has been massively extended to cover not only arm’s-length commercial transactions, but consumer and employment contracts as well. The Supreme Court, its previous hostile stance long forgotten, has created a policy of favoring arbitration and striking down many an argument that may interfere with that policy. In particular, the Court solidified its position …

Turning The Tables In Research And Development Licensing Contracts, Niyazi Taneri, Pascale Crama

Research Collection Lee Kong Chian School Of Business

Research and development (R&D) collaborations between an innovator and her partner are often undertaken when neither party can bring the product to market individually, which precludes value creation without a joint effort. Yet, the uncertain nature of R&D complicates the monitoring of effort, and the resulting moral hazard reduces a collaboration’s value. Either party can avoid this outcome by acquiring the capability that is missing and then taking sole ownership of the project. That approach involves two types of risks: one related to whether the other party’s capability will be acquired and one related to how well it will be …

In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Getting Real About Procedure: Changing How We Think, Write And Teach About American Civil Procedure, Suzette M. Malveaux

Publications

No abstract provided.

Arbitration (Tahkim) And Reconciliation (Sulh) In Islam As Alternative Dispute Resolution Mechanisms, Saidilyos Khakimov

The Light of Islam

The main reason behind this work is to illustrate the current need for Islamic alternative dispute resolution methods and offer analysis to show the benefts of their applications. There has been a vivid rise in ADRs’ recognition globally as a substitute for litigation and related issues that would be better if addressed with an Islamic perspective. The wide usage of the term has been intensifed uninterruptedly after the second half of the 20th century. This paper intends to introduce a 1,5-centuryyear-old background of legally institutionalized arbitration
(Tahkim) and reconciliation (Sulh), Islamic means or ways of alternative dispute resolution. I will …

The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas

Pace International Law Review

The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while …

Unwaivable: Public Enforcement Claims And Mandatory Arbitration, Myriam E. Gilles, Gary Friedman

Articles

This essay, written for a conference on the “pathways and hurdles” that lie ahead in consumer litigation, is the first to examine the implications of California’s recent jurisprudence holding public enforcement claims unwaivable in standard-form contracts of adhesion, and the inevitable clash with the U.S. Supreme Court’s decisional law interpreting the Federal Arbitration Act. With its rich history of rebuffing efforts to deprive citizens of public rights through private contract, California provides an ideal laboratory for exploring this escalating conflict.

Susan Wells-Wilson Order, Wesley B. Tailor

Superior Court of Fulton County: Metro Atlanta Business Case Division Opinions

No abstract provided.

Making Employment Arbitration Fair And Accessible, Theodore J. St. Antoine

Articles

Mandatory arbitration agreements require employees, as a condition of employment, to agree to arbitrate all employment disputes instead of filing court suits. The Supreme Court has approved such agreements but many labor experts oppose them. The U.S. House of Representatives has passed a bill to prohibit pre-dispute agreements, the common form for mandatory arbitrations. This article argues that the House bill would have the practical effect of virtually eliminating employment arbitration. Instead, proposals are presented for either legislative or judicial steps to ensure that employment arbitration is fair and accessible. Requirements would include: (1) voluntary agreements on the part of …

Anticipating Procedural Innovation: How And When Parties Calibrate Procedure Through Contract, Henry Allen Blair

Faculty Scholarship

Despite a vast literature on contract theory, scholars are only just scratching the surface of understanding how parties design their contracts in the real world. This shortfall is particularly true of procedural customizations. Contrary to some early commentators’ estimates, in a small but significant set of circumstances, parties engage in a diverse range of procedural customization. To date, however, scholars have struggled to identify and explain the patterns of ex ante procedural contracting.

This Article argues that the first step toward understanding how transactional attorneys harness the potential of procedural autonomy is to recognize that procedural customization functions most effectively …

Cullinane V. Uber Technologies, Inc., Carly Schreiber

NYLS Law Review

No abstract provided.

The State Qui Tam To Enforce Employment Law, Andrew Elmore

Faculty Scholarship

This Article examines the states' response to Epic Systems v. Lewis, which held enforceable under the Federal Arbitration Act (FAA) mandatory arbitration agreements that require employees to waive their participation in collective and class actions in employment contracts. Recent evidence shows that mandatory arbitration can erode access to justice for and deterrence of employment law claims. States in response are considering qui tam statutes, which assign the state interests in penalties for employment law violations to private enforcers in return for a bounty, to substitute for the loss of class action enforcement after Epic Systems.

These statutes can …

Federalizing Contract Law, Stephen A. Plass

Lewis & Clark Law Review

Contract law is generally understood as state common law, supplemented by the Second Restatement of Contracts and Article 2 of the Uniform Commercial Code. It is regarded as an expression of personal liberty, anchored in the bargain and consideration model of the 19th century or classical period. However, for some time now, non-bargained or adhesion contracts have been the norm, and increasingly, the adjudication of legal rights and contractual remedies is controlled by privately determined arbitration rules. The widespread adoption of arbitral adjudication by businesses has been enthusiastically endorsed by the Supreme Court as consonant with the Federal Arbitration Act …