Dispute Resolution and Arbitration Commons^™

A Better Approach To Arbitrability, Jeffrey W. Stempel

Scholarly Works

Historically, Anglo-American courts refused to enforce arbitration agreements, jealously guarding their dispute resolution monopoly. During the early twentieth century, merchants and attorneys began seeking legislation requiring courts to defer to arbitration. The United States Abitration Act took effect January 1, 1926 and has remained essentially unchanged. It was written with the implicit assumption that it would be invoked by commercial actors having relatively equal bargaining power and emotive appeal to a jury. The Act says nothing to direct the court's inquiry concerning the quality of either party's assent to the arbitration clause other than requiring a written arbitration agreement and …

Reconsidering The Employment Contract Exclusion In Section 1 Of The Federal Arbitration Act: Correcting The Judiciary's Failure Of Statutory Vision, Jeffrey W. Stempel

Scholarly Works

The Federal Arbitration Act (the Act), seeks to eliminate centuries of perceived judicial hostility toward arbitration agreements. The Act made written arbitration agreements involving interstate commerce specifically enforceable. It also provided a procedural structure for enforcing awards, which were protected through deferential judicial review. The Act intended to have a wide reach, employing a broad definition of commerce that has presumably grown in breadth along with the expansion of judicial notions of commerce. Although courts applied the Act in tentative and cautious fashion until the 1960's, arbitration gained momentum during the 1970's and the 1980's. Despite growing judicial enthusiasm for …

Introduction To Symposium: Achieving Justice In Arbitration, Thomas E. Carbonneau

Faculty Scholarship

This symposium attests to the depth of scholarship that now surrounds the law of arbitration and to arbitration's widening adjudicatory mission in matters international and domestic. Authored by senior and emerging scholars who share a commitment to professional excellence, the various contributions not only assure continuity in arbitral scholarship, but also underscore the growing sophistication of arbitral practice and illustrate the complexity of the relationship between arbitration and the legal process. This symposium represents an inquiry into the convergence and divergence of legal and arbitral adjudicatory values and what impact these similarities and differences might have upon the functioning and …

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

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

Curtailing The Arbitrator's Power: Valid Withholding Of Jurisdictionor Judicial Flaw, Kevin L. Wibbenmeyer

Journal of Dispute Resolution

With the movement toward alternative dispute resolution comes the issue of how much freedom arbitrators will be given before the courts will find the arbitrator's rulings to be beyond their jurisdiction. This Note will provide an understanding of the decision in Cobler v. Stanley, Barber, Southard, Brown & Associates, where the court limited the power of the arbitrator. 2 Further, this Note will explain how Cobler is inconsistent with California case law which suggests that great deference shall be given to the power of arbitrators.

Your Forum Or Mine - Where To Arbitrate Investor-Broker Securities Claims, Christopher J. Moeller

Journal of Dispute Resolution

This Comment will discuss the present forums available for customer-broker arbitration disputes, the problems arising in the current system, what changes in the present system may help resolve these problems, and the desirability of creating a new forum to handle all securities arbitrations between customers and brokers. This Comment will not challenge the desirability of arbitrating customer-broker disputes in general. Indeed, many scholars and commentators argue that arbitration is beneficial to both the customer and the broker because it provides a more efficient and less expensive means of settling disputes than litigation. However, for arbitration to effectively handle customer grievances, …

Quasi-Judicial Immunity: The Arbitrator's Shield Or Sword, Robert M. Carroll

Journal of Dispute Resolution

With the rising number of divorces in today's society 2 and with the national emphasis to resolve child custody disputes through alternative forms of dispute resolution,3 the ability to hold arbitrators accountable for their actions within settlement conferences is becoming a prevalent issue. Arbitrators and mediators, commonly outside of the court's supervision, are now determining the best interests of the child, a role traditionally reserved to the courts.4 This increase of out-of-court settlements creates a need for certain standards which hold these quasi-judicial officers responsible for their decisions and liable for their actions. The court in Howard v. Drapkin addressed …

Struggle Over Consolidation Of Arbitration Proceedings Continues: The Eighth Circuit Chooses Sides, The, Scott E. Blair

Journal of Dispute Resolution

In response to rising litigation costs and overburdened court dockets, parties are realizing the opportunity to resolve disputes more efficiently through the use of arbitration. 2 To ensure access to arbitration, parties are including provisions in contracts requiring arbitration of future disputes.3 Courts enforce these agreements pursuant to the Federal Arbitration Act (FAA), 4 originally adopted by Congress in 1925, which officially acknowledged the validity of private agreements to arbitrate.5 As a result, courts are faced with procedural issues, such as consolidation of separate arbitration proceedings, in their attempt to enforce the contracts in accordance with the parties' agreement. 6 …

Consumer Problems And Adr: An Analysis Of The Federal Trade Commission-Ordered General Motors Mediation And Arbitration Program, Arthur Best

Journal of Dispute Resolution

This Article evaluates a controversial mediation and arbitration program established by General Motors (GM) for owners of certain cars. It began in 1984, under the terms of a Federal Trade Commission (FTC) consent order settling charges that GM had deceptively failed to inform buyers that particular models of cars contained components that had unusually low durability. When the settlement was proposed, debate centered on whether the public interest would be served best by: 1) creation of mediation and arbitration opportunities for individual owners; or 2) prosecution of a single action seeking uniform compensation for all owners. One commissioner feared that …

Arbitration Awards In Uninsured And Underinsured Motorist Insurance Provisions: Which Public Policy To Apply - Mendes V. Automobile Insurance Co. Of Hartford, L. Dean Wilson

Journal of Dispute Resolution

This Note examines how the Connecticut Supreme Court handled a case involving an automobile insurance policy that called for arbitration of disputes concerning uninsured and underinsured motorist coverage, but allowed either party to demand a trial de novo if unsatisfied With the arbitration award.

Recent Developments: The Uniform Arbitration Act, Gregory K. Barnes, Cynthia R. Bradley-Bishop, Michele Carroll, Richard W. Fischer

Journal of Dispute Resolution

Arbitration as a forum for dispute resolution has been a part of the American common law heritage for at least the past one hundred fifty years. However, until recently, state law was almost uniformly biased against arbitration.2 The theory at common law was that either party to an agreement to arbitrate future disputes could void the agreement at any time.3 This legal environment rendered the institution of arbitration impotent in any situation in which one of the parties decided that their interests would be better served if the dispute was resolved in a more traditional court setting

Securities Arbitration Appeal: An Oxymoron No Longer?, C. Evan Stewart

Kentucky Law Journal

No abstract provided.

Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel

Scholarly Works

As the juxtaposition of these quotations suggests, judges have long held disparate views on the legitimacy and value of “public policy” considerations as a basis for legal decision making. The popular notion posits that Justice Holmes and legal realists carried the day, making public policy analysis an ordinary part of the adjudication process. The story, of course, is more complex than this legal version of Don Quixote. Many judges and lawyers, including Justice Holmes in other writings, continued to speak of adjudication in more formalist and positivist terms, with most laypersons in apparent agreement. Judge Burroughs' view of public policy …

Arbitration And The U.S. Supreme Court: A Plea For Statutory Reform, Thomas E. Carbonneau

Faculty Scholarship

This Article argues for stabilizing and preserving arbitration's necessary and valuable vocation in dispute resolution. It outlines the basic stages in the evolution of the American law of arbitration and studies the underlying motivation of each of its historical phases. It attributes vital significance to the legislative and decisional law developments that led to an early rehabilitation of arbitration in American law, beginning with the enactment of the United States Arbitration Act (FAA) in 1925 and continuing with the ratification of the New York Arbitration Convention and the elaboration of a "hospitable" federal caselaw. Eventually, these developments gave rise to …

Context, Properties, And Constitutionality Of Nonconsensual Arbitration: A Study Of Four Systems, The, John R. Allison

Journal of Dispute Resolution

The purpose of this article is to analyze the context, properties, and constitutionality of these instances of nonconsensual arbitration. Although FIFRA data arbitration and the constitutional challenges to which it has been subjected will receive the most extensive study, the other examples also will be explored in some detail. It is first necessary, however, to lay some groundwork. Each of the nonconsensual arbitration systems to be studied, including FIFRA data arbitration, draws the inspiration for its design and operation from contract-based commercial arbitration. To aid in the understanding of the former, Part II discusses the fundamental nature and legal framework …

Constitutionally Recognizing Court Mandated Arbitration: Paradise Found Or Problems Abound - Firelock Inc. V. District Court, Scott M. Badami

Journal of Dispute Resolution

This Note will argue that notwithstanding any criticism of the court-annexed arbitration procedure, the Colorado Supreme Court is taking a leadership position in upholding and expanding the role for arbitration, by recognizing that this form of alternative dispute resolution is less expensive, saves judicial time, provides for confidentially, and most importantly, provides the parties with a sense of fairness in the outcome.

Bridging The Procedural Gap: Arbitration Decisions As A Basis For Collateral Estoppel - Benjamin V. Traffic Executive Association Eastern Railroads, Robert M. Bain

Journal of Dispute Resolution

Courts have long used the doctrine of collateral estoppel to preclude relitigation of previously determined issues. The fora for the previous determination is of importance in deciding whether to apply the doctrine. This Note will examine the application of the doctrine of collateral estoppel to arbitration decisions. In deciding the question, the courts' major consideration is the degree of procedural differences between the arbitration proceeding and a judicial proceeding. The more closely an arbitration resembles litigation in the procedural safeguards employed, the more likely that the arbitral decision will be accorded a preclusive effect. Unfortunately, as arbitration proceedings become more …

Book Reviews, Michele S. G. Hermann

Journal of Dispute Resolution

Two new introductory books on mediation have been published within the last year. ANATOMY OF MEDIATION1 is co-authored by veteran labor arbitrator Sam Kagel, who has been practicing and writing about resolving labor-management disputes for 45 years,2 and Kathy Kelly, also a labor arbitrator and author in the field.3 MEDIATE, DON'T LITIGATE4 is written by Peter Lovenheim, a New York lawyer who is former legal counsel and program director for the Center for Dispute Settlement, a public mediation center in Rochester, New York

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 …

Autonomy Of Law And The Origins Of The Legal Profession, Bruce W. Frier

Cardozo Law Review

No abstract provided.

Integrating Dispute Resolution Into Standard First-Year Courses: The Missouri Plan, Leonard L. Riskin, James E. Westbrook

Journal of Legal Education

No abstract provided.

Law Thinking Itself: The Idealism Of International Law, Harry Brod

Cardozo Law Review

No abstract provided.

Book Review Of On Trial! Law, Lawyers And The Legal System, Edmund F. Byrne

Journal of Legal Education

No abstract provided.

Mandatory Securities Industry Arbitration: The Problems And The Solution, David A. Lipton

Maryland Law Review

No abstract provided.

Conflict Resolution In Industrial Relations, Theodore J. St. Antoine

Book Chapters

Only about one-fifth of the American labor force is unionized. With certain important exceptions, therefore, no formal machinery exists to resolve the various disputes that arise between a majority of the country's workers and their employers. The exception, which will not be treated in detail in this study, relate to (1) the right to organize into unions, which has been protected in most of the private sector since 1935 by the National Labor Relations Act and in the public sector since the 1960s by federal law and regulation covering U.S. Government employees and by statutes in about thirty states covering …

Cultural Neutrality: A Prerequisite To Arbitral Justice, Giorgio Bernini

Michigan Journal of International Law

In common parlance, neutrality is often equated with impartiality. Any such assimilation, however, would be incorrect, since neutrality and impartiality are intrinsically different. At the risk of oversimplification, neutrality may be defined as an objective status, i.e. the likelihood that the arbitrator will be, and remain, wholly equidistant in thought and action throughout the arbitral proceedings. Impartiality, on the contrary, partakes more of a subjective status, to be tested in the context of the concrete relations existing between the arbitrator(s) and each individual party. It follows that one can be impartial without being neutral; and conversely, that no arbitrator may …

Court-Annexed Arbitration: Kentucky's Viable Alternative To Litigation, James C. Thornton

Kentucky Law Journal

No abstract provided.

Hey Counselor, Can You Spare A Dime - The Seventh Circuit's High-Water Mark In Curbing Meritless Challenges Of Arbitration Awards - Hill V. Norfolk & (And) Western Railway, Robert K. Angstead

Journal of Dispute Resolution

This Note traces the history of the Seventh Circuit's recent use of Rule 11 in actions involving the circumvention of the arbitration process to that circuit's highwater mark decision in Hill v. Norfolk & Western Railway.1 " This history serves to illuminate the imperative delivered by Judge Posner, not only to members of the bar in the Seventh Circuit but to officers of the court nationwide: "Lawyers practicing in the Seventh Circuit, take heed!"

Recent Developments: The Uniform Arbitration Act

Journal of Dispute Resolution

The U.A.A. provides that "[a] written agreement to submit any existing controversy to arbitration . . . is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. "5 Courts and legislatures alike routinely state the policies promoting arbitration. Because most states favor the settlement of disputes through arbitration, there is a tendency for courts to find a valid arbitration agreement

Defenses To Enforcement Of Foreign Arbitral Awards Under The United Nations Convention Of 1958 Focusing On Article V Of The Convention And Practice In U.S. Courts, U-Kyung Sung

LLM Theses and Essays

This LL.M. thesis analyzes the defenses available to parties resisting enforcement of foreign arbitral awards under the United Nations Convention on the Recognition and Enforcement of Foreign Arbital Awards, with particular focus on Article V and its application in United States federal courts. The work examines each Article V(1) defense — including invalidity of the arbitration agreement, violation of due process, excess of arbitral authority, improper tribunal composition or procedure, and the non-binding, set aside, or suspended award defense — as well as the Article V(2) defenses of non-arbitrability and public policy. The work also addresses defenses based on reservations …