Dispute Resolution and Arbitration Commons^™

Introductory Remarks, Dana Welch

American University Business Law Review

The year 1925 proved to be eventful for the United States and for the world. The Scopes Monkey Trial placed evolution in the spotlight. The New Yorker published its first issue. The "Grand Ole Opry´ premiered on the radio as the WSM Barn Dance. And fascism threatened Europe as Benito Mussolini dissolved the Italian Parliament and declared himself "Il Duce," the dictator of Italy, while Adolf Hitler published the first volume of Mein Kampf, written from prison. On a lighter note, Washington, D.C., saw the first National Spelling Bee, won by Frank Neuhauser, an eleven-year-old from Kentucky who correctly spelled …

Bringing Section 7 Into The Next Century, Amy J. Schmitz, David M. Brodsky

American University Business Law Review

In 1925, Congress passed a historic piece of legislation, the Federal Arbitration Act (FAA), that attempted to change the American judiciary's hostility towards enforcing arbitration agreements and awards. This hostility was rooted in English common law and migrated to the American civil justice system. But in 1925, Congress gave life to the broad use of executory agreements to enforce compliance with contracts through arbitration.

What We Can Learn From The Notorious P&Id V. Nigeria, Emily Granja

Arbitration Brief

On October 23, 2023, England’s High Court of Justice ruled in favor of the Federal Republic of Nigeria in Nigeria v. Process & Industrial Developments Ltd. (P&ID). Reviewing the case, the High Court vacated P&ID’s $10 billion arbitral award after finding significant evidence of fraud and bribery. While the High Court’s decision marked a victory for Nigeria, it also shook the international arbitration system. This case exposed some of international arbitration’s flaws and generated new concerns regarding the confidentiality inherent in the arbitration process.

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 …

Section 4 -- Jury, Trial: A Misnomer In The Faa, Tracey B. Frisch

American University Business Law Review

The purpose of the Federal Arbitration Act (FAA), according to the Supreme Court, was not merely to reverse judicial hostility towards arbitration by placing agreements to arbitrate on the same footing as other contracts but to actively promote the use of arbitration on a national scale. It is not surprising then that most provisions of the FAA envision limited court intervention into the arbitration process.

The Problem Of Unreasoned Reasoned Awards And The Judicial Failure To Remedy It: Statutory And Rule Solutions, John B. Mcarthur, Mark Travis

American University Business Law Review

American arbitrators have long been choosing between two common forms of awards: "reasoned awards" and "standard awards" with no reasons enumerated. Yet neither arbitration rules nor statutes define "reasoned award." This lack of guidance has gotten arbitration in trouble and threatens its ability to satisfy users' needs.

International Arbitration And Conflicts Of Law: Three Hard Questions For Symeon, Peter B. Rutledge

Scholarly Works

The presence of a foreign element in a legal relationship inevitably introduces intricate choice-of-law issues. This postulate holds especially true in the context of international arbitration. Arbitration involves an exceptional degree of procedural freedom (including over the choice of the applicable law) and a distinctive conflict-of-laws regime that may be unbound from a particular national legal system. This article examines several choice-of-law issues arising in the context of international arbitration. In particular, Section I of this article addresses whether the United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards, otherwise known as the New York Convention, is selfexecuting …

Defining Arbitration, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

The Federal Arbitration Act (FAA) does not define the term “arbitration,” the very process the one-hundred-year-old statute was enacted to promote. The absence of a definition has led to courts' inconsistent and unpredictable application of the FAA's regulatory benefits to agreements to resolve disputes in processes other than traditional, binding arbitration, such as appraisal, evaluation, and mediation. Additionally, with no clear definition as guidance, companies have inserted arbitration clauses into adhesive consumer and employment agreements that require “arbitration” of disputes but designate a process lacking hallmarks of due process. The Supreme Court even justified enforcing class action waivers in arbitration …

"Arbitration In Name Only": A Race Claims Mismatch, Michael Z. Green

Faculty Scholarship

With arbitration's meteoric rise as a tool in resolving statutory employment discrimination matters beginning in the 1990s, concerns about lack of employee bargaining power received little consideration when raised in court challenges to the enforcement of employer-mandated agreements to arbitrate those claims. Only in rare circumstances, when an employer appeared to go to extremes in using its overwhelming bargaining power to implement an arbitration process so clearly unfair would a court find the agreement created an unfair "arbitration in name only" that should not be enforced. 

Employers have become savvier in how they require employees to agree to resolve discrimination …

Adding A Data Disclosure Requirement To The Faa: An Overdue Reform, Richard Frankel

American University Business Law Review

Artificial intelligence (AI) and predictive analytics are transforming almost every sector of society. The field of dispute resolution is no exception to this trend. Lawyers in emerging disputes are hungry for data about arbitrators and judges, prior decisions, similar disputes, and anything else they can get their hands on.

Towards The Faa's Next Century: Clarifying Disclosure Requirements In Arbitration, Andrea K. Schneider, Brian Farkas

American University Business Law Review

In the summer of 2024, all eyes were on Paris. Thousands of athletes from over 200 countries competed in over 300 sports. The Olympics is nationalism at its healthiest: cheering for one's own nation, while recognizing the fundamentally transnational human values of pluralism, diversity, and aspiration.

Facilitating Trust Arbitration By Amending The Federal Arbitration Act, S. I. Strong

American University Business Law Review

Over the last few years, a new dispute resolution procedure has burst onto the domestic and international stage: trust arbitration, which allows an arbitration provision located in a trust to trigger arbitration of "internal" trust disputes arising either between trust beneficiaries or between beneficiaries and the trustee.

Enforceability Of Consumer Arbitration Agreements In Missouri, Bobbie L. Crew

Law Student Works

Arbitration is a form of alternative dispute resolution in which parties agree to "choose one or more neutral third parties to make a final and binding decision [to] resolv[e] the dispute" outside of court. Courts generally cannot overturn a binding decision made under a valid arbitration agreement. Arbitration may be used to resolve a variety of disputes, but this Pathfinder explores the enforceability of arbitration agreements in the consumer context. Consumer arbitration agreements are made between a business offering a product or a service and its direct consumer. Businesses are increasingly including arbitration provisions in their Terms & Conditions and …

Arbitrase Dan Media Sosial (Arbitration And Social Media), Suar Sanubari

Jurnal Hukum & Pembangunan

This article discusses the use of social media among arbitration actors. Social media have evolved since its inception. In the beginning, social networks were used to stay in touch with friends and family. Now the trend is to follow influencers. The boundaries between personal and professional use have become blurry. Social media are more regulated and supervised now, especially due to privacy and national security concerns. The social media adoption landscape has matured with increasing adoption by all generations. The use of social media can give rise to questions about ethical conduct or even the integrity of the arbitration proceedings. …

Adr In The Ongoing Experiment Of American Law, Carli N. Conklin

Faculty Publications

To engage in the development of American law— past or present—is to engage in a great and ongoing experiment. It is an exercise of the imagination. And one place where American law has been most imaginative is in the field of alternative dispute resolution. It is an area of law that, in its creativity and emphasis on the person as a whole, is particularly well-suited to respond to the guiding question of our constitutional democracy: how might we live well together?

From Hunch To Analysis: Risk Management In Tiered Dispute Resolution Processes, Troy L. Harris

Pepperdine Dispute Resolution Law Journal

The dispute resolution is process is filled with risk that decision-makers must identify, analyze, and manage. Risks can include unclear and conflicting objectives and uncertainties regarding strategic alternatives. While many litigators are adept at identifying these risks, systematic analysis and management of them is not typically part of lawyers’ education or training. And yet there is a rich body of management scholarship devoted to risk analysis and decision-making based upon multiple criteria. This article brings the insights of this management literature to bear upon a phenomenon commonly found in relational contracting, the “tiered” dispute resolution process. The article demonstrates that …

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 …

What Is The Price Of Withdrawing From Investor-State Dispute Settlement Provisions In An Era Of Climate Conscious Policy? Comparing Latin America's Rejection Of Foreign Investor Control To The Fallout From The Energy Charter Treaty, Carrie Swiggum

Student Scholarship

This article examines Investor-State Dispute Settlements criticisms and intended benefits as it comes up in public law issues such as the Energy Charter Treaty. The treaty is the world’s largest multilateral treaty, with about 50 member countries, and the most litigated, with most cases decided by arbitration. There is criticism against an inability to modernize the treaty due to concerns regarding climate change as well as criticism against the investor-state dispute settlement system itself, because of arbitration’s secrecy and lack of public involvement. This article argues that countries should leave unilaterally as they have begun to do, avoiding the regulatory …

Expanding The Ban On Forced Arbitration To Race Claims, Michael Z. Green

Faculty Scholarship

When Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”) in March 2022, it signaled a major retreat from the Supreme Court’s broad enforcement of agreements to force employees and consumers to arbitrate discrimination claims. But the failure to cover protected discriminatory classes other than sex, especially race, tempers any exuberance attributable to the passage of EFASASHA. This Article prescribes an approach for employees and consumers to rely upon EFASASHA as a tool to prevent both race and sex discrimination claims from being forced into arbitration by employers and companies. This approach relies upon procedural …

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 …

An Exacerbated Power Imbalance: The Danger In Allowing Ai To Render Arbitral Awards In Employment Arbitration, Elizabeth G. Stein

Mitchell Hamline Law Review

No abstract provided.

Arbitration As A Dispute Resolution Mechanism For Cross-Border Intellectual Propery Disputes, Kat Gritsenko

Cybaris®

No abstract provided.

Special Challenges In The Execution Of Arbitral Awards In India In Public- Private Partnerships: A Trade Perspective, Srividhya Ragavan, Niraj Kumar Seth

National Law School of India Review

With around 47 million pending cases at various stages of Indian judiciary and one of the lowest levels of judges per million of population in the world, India’s arbitration regime presents a ray of hope for millions of Indians who face the prospect of justice being denied to them due to inordinate delays caused by a clogged judicial pipeline. The enactment of the Arbitration and Conciliation Act, 1996 was presented as a viable alternative to resolving commercial disputes in a timely manner. This paper uses a case study to discuss how arbitration in India has not fulfilled the timeliness promise …

Delegation Run Amok, George A. Bermann

Faculty Scholarship

The proper allocation of authority between courts and arbitral tribunals over the enforceability of agreements to arbitrate has long occupied a central place in United States arbitration law, domestic and international alike. From US Supreme Court case law over the years, there has emerged a reasonably well-understood distinction between those issues of enforceability that a court will address if asked by a party to do so and those that it will not. Fundamental to the Court’s jurisprudence is a recognition that some enforceability issues — “gateway issues” — so seriously implicate the consent of parties to arbitrate their disputes that …

Special Challenges In Execution Of Arbitral Awards In Public Private Partnerships, Srividhya Ragavan, Niraj Kumar Seth

Faculty Scholarship

With around 47 million pending cases at various stages of Indian judiciary and one of the lowest levels of judges per million of population in the world, India’s arbitration regime presents a ray of hope for millions of Indians who face the prospect of justice being denied to them due to inordinate delays caused by a clogged judicial pipeline. The enactment of the Arbitration and Conciliation Act, 1996 was presented as a viable alternative to resolve commercial disputes in a timely manner. This paper uses a case study to discuss how arbitration in India has not fulfilled the timeliness promise …

Demystifying The Elusive Quest For Cyber Insurance Protection: The Need For New Contract Language, Deborah L. Johnson

Cardozo Law Review

Cyberattacks and electronic data breaches are on the rise, and the costs associated with those breaches can be astronomical. In response, the insurance industry has created a specialty market for cyber coverage. However, despite the number of cyber insurance policies currently offered on the market, insurers frequently deny claims for cyber coverage under both these specialty and traditional policies.

Examining the evolution of cyberattacks, data breaches, and the massive harm they can cause to businesses, this Article explores the legal and market obstacles to obtaining adequate cyber insurance coverage and offers potential solutions to policyholders and insurers to satisfy this …

The Use Of Arbitration Clauses By Social Media Websites: A Critique, Kavya Jha, Ananya Singh

Pepperdine Dispute Resolution Law Journal

The arbitration clauses contained in the Terms of Services (ToS) of most social media websites mandate arbitration and the waiver of class arbitration.1 In light of this reality, this article seeks to analyze the legal position with respect to mandatory arbitration and class arbitration waiver in the United States, India, and European Union (EU). It compares and juxtaposes the respective positions in these three jurisdictions to find that whereas the United States has been pro-arbitration to the extent of being detrimental to consumer interest, India has adopted an overly protectionist approach, while the EU has adopted an effective model to …

Managing Multiplicity: Consolidating Parallel Arbitration Proceedings For Renewal Energy Disputes, Francesca Pinto

Pepperdine Dispute Resolution Law Journal

The United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, considered the most widely used set of ad hoc rules in international arbitration, do not contain any provisions on consolidating parallel proceedings. Considering the complex, multiparty, and multiple-contract nature of renewable energy investment and development, the UNCITRAL Arbitration Rules should implement consolidation provisions that explicitly address consolidation for related arbitration proceedings and—in some circumstances—enforce consolidation regardless of whether all parties consent. Part II of this article provides an overview of transactions related to the investment, development, and operation of renewable energy projects. Part III identifies the risks of parallel …

Deterrence Defeats Doping: How Arbitration Can Resolve Major League Baseball's Performance-Enhancing Drug Problem, Brice Barnes

Pepperdine Dispute Resolution Law Journal

This article analyzes MLB’s PED policy and proposes amending the policy by arbitrating the agreement to create one that further deters players from using PEDs. The remainder of this article is divided into five parts: Part II discusses the significance of the PED issue and why resolution is necessary; Part III discusses the history of PED use in baseball and the efforts by the League to address it; Part IV proposes the solution of arbitration and explains how the process might work; Part V addresses potential objections to that solution; and finally, Part VI concludes.