Dispute Resolution and Arbitration Commons^™

Does Rigorously Enforcing Arbitration Agreements Promote “Autonomy”?, Hiro N. Aragaki

Indiana Law Journal

In recent years, the U.S. Supreme Court has helped transform arbitration law into a radical private-ordering regime in which freedom of contract has come to eclipse public regulation. Arbitration jurisprudence justifies this transformation in part on a profound and longstanding commitment to the ideal of individual autonomy, understood as the freedom—lacking in litigation—to select a disputing process best suited to one’s needs.

In this Article, I question the cogency of this justification. I argue, first, that autonomy has had different and sometimes conflicting meanings even within arbitration jurisprudence. Second, depending on the meaning one ascribes to autonomy, it is at …

Oh, Won't You Stay With Me?: Determining Whether § 3 Of The Faa Requires A Stay In Light Of Katz V. Cellco Partnership, Alessandra Rose Johnson

Fordham Law Review

The Federal Arbitration Act (FAA) provides the legal framework to render international and interstate arbitration agreements judicially enforceable in the United States. In furtherance of that goal, it provides that, if a party initiates litigation rather than arbitration of an arbitrable dispute, either party may request that the court stay the litigation pending resolution in an arbitration proceeding. The U.S. courts of appeals are currently split as to whether § 3 of the FAA requires a court under these circumstances to stay the action or whether the court has the discretion to dismiss the action altogether. In Katz v. Cellco …

Reforming The Federal Arbitration Act To Equalize The Adjudication Rights Of Powerful And Weak Parties, Stephen A. Plass

Catholic University Law Review

Providing an extensive historical overview of federal arbitration jurisprudence and the Federal Arbitration Act (FAA), this article argues that the Supreme Court has misinterpreted FAA provisions and goals, thereby drastically changing the law of labor arbitration to the detriment of American workers and consumers. Namely, original congressional policy goals (providing speedy, fair and informal alternatives to court adjudication) have been countermanded by the Supreme Court’s interpretation of arbitration law over the last 50 years. As a result, modern arbitration law sets up an imbalance of power between employers/merchants and workers/consumers who are forced into lengthy and expensive procedures before they …

The Customer's Nonwaivable Right To Choose Arbitration In The Securities Industry, Jill I. Gross

Brooklyn Journal of Corporate, Financial & Commercial Law

Arbitration has been the predominant form of dispute resolution in the securities industry since the 1980s. Virtually all brokerage firms include predispute arbitration agreements (PDAAs) in their retail customer contracts, and have successfully fought off challenges to their validity. Additionally, the industry has long mandated that firms submit to arbitration at the demand of a customer, even in the absence of a PDAA.

More recently, however, brokerage firms have been arguing that forum selection clauses in their agreements with sophisticated customers (such as institutional investors and issuers) supersede firms’ duty to arbitrate under FINRA Rule 12200. Circuit courts currently are …

Inetianbor And Green: How Two Payday Loan Disputes Illustrate The Integrality Rule’S Incompatibility With The Faa, Cameron C. Lincoln

Journal of Dispute Resolution

The integrality rule is a rule grounded in the analysis of party intent and allows for an arbitration agreement to be vitiated if the selected forum is unavailable and the forum was integral to the agreement. The integrality rule, conceived in 1990, has a short history, and while it is followed by several federal appellate circuits, it is not consistently named or referenced. The Eleventh Circuit applied the rule in Inetianbor v. CashCall, Inc., where the court precluded arbitration due to the integrality rule. This case raises questions of whether the integrality rule contradicts the Federal Arbitration Act (FAA), whether …

Do Judicially Created Grounds For Vacating Arbitral Awards Still Exist?: Why Manifest Disregard Of The Law And Public Policy Exceptions Should Be Considered Under Vacatur, Ashley K. Sundquist

Journal of Dispute Resolution

The Court’s strong language in Hall Street indicated the Court’s intent for the FAA to provide the exclusive grounds for vacating an arbitral award. Therefore, once the Court addresses the circuit split, it will likely hold that judicially created grounds are not an acceptable form of vacatur. However, doing so would cause individuals injustice, in particular where awards manifestly disregard the law and go against public policy. This Note argues that if the Court abolishes judicially created grounds, it should reinterpret the FAA to include manifest disregard of the law and violations to public policy under the exceeded powers exception …

Arbitration Case Law Update 2015, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This chapter identifies decisions by the U.S. Supreme Court and selected federal circuit and high state courts in the past year that interpret and apply the Federal Arbitration Act (FAA) and could have an impact on securities arbitration practice.

"Horton And The Who": Determining Who Is Affected By The Emerging Statutory Battle Between The Faa And Federal Labor Law, James R. Montgomery

Journal of Dispute Resolution

In the early 20th century, social changes brought about a system designed to protect employees. As part of the American system of labor laws, workers are given certain rights to proceed collectively, to "band together," and to proceed as a unit. Labor laws were first enacted in the United States during a period of Supreme Court jurisprudence that granted a broad array of powers to corporations, in the form of "liberty of contract." Justice Holmes dissented in Lochner v. New York, and planted a seed in his opinion that would later go on to support the idea behind federal labor …

Arbitration Case Law Update 2014, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

This chapter identifies decisions by the U.S. Supreme Court, the Financial Industry Regulatory Authority (FINRA) and selected lower federal and state courts in the past year that interpret and apply the Federal Arbitration Act (FAA) and could have an impact on securities arbitration practice.

“Final” Awards Reconceptualized: A Proposal To Resolve The Hall Street Circuit Split, Matthew J. Brown

Pepperdine Dispute Resolution Law Journal

This article discusses the current circuit split over the continued validity of manifest disregard of the law (“manifest disregard”) as a nonstatutory ground for vacatur of arbitration awards under the Federal Arbitration Act (“FAA”). Today, as commercial parties decide whether to include arbitration agreements in their business contracts, they weigh the risks of proceeding to arbitration versus litigation to resolve their disputes. This topic is especially pertinent in light of the current economic climate. Dicta from the U.S. Supreme Court’s decision in Hall Street Associates, L.L.C. v. Mattel, Inc. called into question the continued validity of nonstatutory grounds for vacatur. …

There Has Been A Misconcepcion: The Faa Does Not Foster The Waiver Of Statutory Rights: Reyes V. Liberman Broad, Inc., Joanna L. Byrne

Journal of Dispute Resolution

This paper first discusses the particular facts and proceedings in Reyes. Next, it will discuss the complicated legal landscape that affects the interpretation of class arbitration waivers in California. Then, this paper will analyze the California Court of Appeals' rationale for its holding in Reyes. Next, this paper will construct an argument in favor of allowing employees to maintain bargaining rights in some circumstances, despite the existence of a class arbitration waiver in an employment contract. Finally, this paper will explore outside factors that may affect the Supreme Court of California's ability to render a decision and analyze how the …

Arbitration Case Law Update 2013, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

The U.S. Supreme Court and lower state and federal courts continue to decide cases under the Federal Arbitration Act (FAA) at an astounding rate. This chapter summarizes Supreme Court opinions over the past year that interpret the FAA, as well as selected lower court decisions that apply the FAA and could have an impact on securities arbitration practice.

Beyond The Self-Execution Analysis: Rationalizing Constitutional, Treaty And Statutory Interpretation In International Commercial Arbitration, S. I. Strong

Faculty Publications

International commercial arbitration has long been considered one of the paradigmatic forms of private international law and has achieved a degree of legitimacy that is virtually unparalleled in the international realm. However, significant questions have recently begun to arise about the device’s public international attributes, stemming largely from a circuit split regarding the nature of the New York Convention, the leading treaty in the field, and Chapter 2 of the Federal Arbitration Act, which helps give effect to the Convention in the United States. Efforts have been made to place the debate about the New York Convention within the context …

Faa Versus The Magnuson - Moss Warranty Act: Which Warrants Precedence, The, Tyler Beckerle

Journal of Dispute Resolution

These questions have proven to be a formidable foe for the judiciary. Moreover, courts and commentators have been divided as to what answer will produce the best policy. In 2002, the discussion seemed to be headed toward conclusion after the Fifth and Eleventh Circuits found that the FAA should trump the MMWA in the event of statutory conflict. However, with the Ninth Circuit’s decision in Kolev v. Euromotors West/The Auto Gallery, this polarizing issue has once again become a focus in American jurisprudence. While the Ninth Circuit has recently withdrawn Kolev sua sponte, it is doubtful that the Ninth Circuit …

Arbitration Case Law Update 2012, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Parties to arbitration agreements sometimes invoke the judicial system to litigate collateral issues arising out of the arbitration process, such as arbitrability of some or all of the claims, arbitrator bias, and award enforcement or vacatur. When deciding these collateral issues arising out of securities arbitration, courts interpret and apply the Federal Arbitration Act (FAA). This chapter identifies recent decisions by the Supreme Court under the FAA, as well as selected lower court decisions that could have an impact on securities arbitration practice.

Faa Law, Without The Activism: What If The Bellwether Cases Were Decided By A Truly Conservative Court, Richard C. Reuben

Faculty Publications

The U.S. Supreme Court has decided an extraordinary number of cases under the Federal Arbitration Act in the last half century, a pattern that continues today at the pace of a case or two a year. During this time, Republican presidential candidates have made much political hay out of the Supreme Court, running against the Warren Court’s “liberal activism” by promising to appoint judges who would decide cases more conservatively. In this article, I analyze whether this promise has been fulfilled in the context of the Supreme Court’s FAA jurisprudence by identifying the core principles of judicial conservatism – restraint, …

The Irony Of At&T V. Concepcion, Colin P. Marks

Faculty Works

This Essay explores the possible dual readings of Concepcion in light of the FAA and its interpretation, including Supreme Court precedents. This Essay concludes that though there is support for interpreting the Concepcion decision narrowly, it is more likely that a broader interpretation was intended, but the metes and bounds of this opinion have yet to be explored. Nonetheless, under this broad interpretation, the effect on consumers will be to discourage individuals from seeking redress for their claims. Indeed, the decision may actually encourage businesses to breach contractual obligations with impunity when the individual sums owed are too small to …

Court Litigation Over Arbitration Agreements: Is It Time For A New Default Rule?, Jack Graves

Scholarly Works

Court litigation over the existence or validity of arbitration agreements is a major threat to the efficacy of international commercial arbitration. While New York Convention Article II(3) requires a court to “refer the parties to arbitration” when faced with a valid and effective arbitration agreement, it fails to provide any guidance with respect to the process for answering that question, thus leaving the issue to national law. A recalcitrant respondent may, therefore, have a variety of options for court challenges—based on a disparate array of national laws—in seeking to delay or at least complicate any claims subject to arbitration. This …

Unconscionable Construction: How The Ninth Circuit Evades The Faa By Severing Arbitration Agreements As Unconscionable Note, Daniel B. Mitchell

Journal of Dispute Resolution

Bridge Fund Capital Corp. v. FastBucks Franchise Corp. illustrates a recent manifestation of an ongoing judicial hostility to arbitration. As the Supreme Court has developed its FAA jurisprudence to limit the severance of arbitration agreements, many lower courts have continued to develop legal justifications to circumvent these restrictions. The FAA's savings clause does afford some latitude for severance of arbitration agreements, but the Supreme Court has not yet defined the limits of the savings clause, nor whether the general contract defense and their justifications are sufficient to supersede FAA policy. Bridge Fund shows how the doctrine of unconscionability it being …

Arbitration Agreements That Discriminate In The Selection And Appointment Of Arbitrators, Jeff Dasteel

Richmond Journal of Global Law & Business

No abstract provided.

Court Litigation Over Arbitration Agreements: Is It Time For A New Default Rule?, Jack Graves

Scholarly Works

Court litigation over the existence or validity of arbitration agreements is a major threat to the efficacy of international commercial arbitration. While New York Convention Article II(3) requires a court to “refer the parties to arbitration” when faced with a valid and effective arbitration agreement, it fails to provide any guidance with respect to the process for answering that question, thus leaving the issue to national law. A recalcitrant respondent may, therefore, have a variety of options for court challenges—based on a disparate array of national laws—in seeking to delay or at least complicate any claims subject to arbitration. This …

Arbitration Case Law Update 2011, Jill I. Gross

Elisabeth Haub School of Law Faculty Publications

Parties to arbitration agreements sometimes invoke the judicial system to litigate collateral issues arising out of the arbitration process, such as arbitrability of some or all of the claims, arbitrator bias, and award enforcement or vacatur. When deciding these collateral issues arising out of securities arbitration, courts interpret and apply the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2010) (FAA). In this chapter, we identify recent judicial decisions in the area of arbitration law, and analyze their impact on securities arbitration practice.

De Novo A No No: Contractually Expanded Judicial Review Clauses Do Not Preclude Faa Application In State Court Unless The Parties Make It Intentionally Clear The Faa Does Not Apply In Their Agreement - Raymond James Fin. Servs., Inc. V. Honea, Tom Swoboda

Journal of Dispute Resolution

This Note addresses a recent Alabama Supreme Court decision concerning the issue of contracted appellate review in arbitration agreements. After analyzing the history of enforcement of arbitration agreements between contracting parties in U.S. Supreme Court precedent, this Note will explore the most recent Supreme Court decision regarding when parties may seek judicial review of arbitration awards. The Federal Arbitration Act's (FAA) preemptive effect over state court law will also be addressed, as the Supreme Court was not thoroughly explanatory on the issue. This Note will also evaluate and compare another state court ruling in Pennsylvania on the same judicial review …

Obituary For The Federal Arbitration Act: An Older Cousin To Modern Civil Procedure, An, Imre S. Szalai

Journal of Dispute Resolution

In order to explore the different ways in which the FAA is related to the development of modern civil procedure, this article is divided into four main parts. first, this article discusses how the FAA is related to the Judiciary Act of 1925. Second, this article focuses on the FAA's relationship to the enactment of the Rules Enabling Act and the related adoption of the Federal Rules of Civil Procedure. Third, this article discusses how the Supreme Court's transformation of the doctrine of personal jurisdiction in International Shoe is related to the enactment of the FAA. Fourth, this article discusses …

On The Continued Vitality Of Securities Arbitration: Why Reform Efforts Must Not Preclude Predispute Arbitration Clauses, Alicia J. Surdyk

NYLS Law Review

No abstract provided.

Third Circuit Buyers Beware: District Court In Litman Holds Unconscionability Defense Contravened By Federal Arbitration Act, David C. Winters

Journal of Dispute Resolution

Without even knowing it, just about everyone has agreed to settle disputes through arbitration and has waived any rights to proceed on a class-wide basis. While many consumers do not read the fine print in the agreements they sign, a variety of companies, from cell phone providers to car dealers, have consumers agree in sales contracts to arbitrate any claims and to waive the ability to proceed with a class action claim. This was the scenario in the case of Litman v. Cellco Partnership, in which a New Jersey federal district court held that the plaintiff cell phone customers could …

Irreconcilable Deferences - The Troubled Marriage Of Judicial Review Standards Under The Steelworkers Trilogy And The Federal Arbitration Act, Michael H. Leroy

Journal of Dispute Resolution

To explore the ramifications of this hybrid, labor-employment discrimination award, I ask what standards would a court apply to review an arbitrator's ruling. The Steelworker's Trilogy-three Supreme Court decisions that explain to courts how to review awards under section 301 of the Labor-Management Relations Act-pronounce deferential standards. But until now, individual employment awards have typically been reviewed under section 10 of the Federal Arbitration Act (FAA) or state law equivalents. My research on labor awards and individual employment awards show that courts do not behave the same under these different regimes. They enforce about seventy-two percent of labor awards, but …

Consistent With Inconsistency: The Sixth Circuit Keeps Manifest Disregard After Hall Street, John C. Steffens

Journal of Dispute Resolution

For over half a century, courts have used the doctrine of manifest disregard as a ground for vacating arbitration awards. However, the Supreme Court's ruling in Hall Street Associates. v. Mattel raised questions among lower courts regarding the viability of the doctrine after the Hall Street decision. Today, many lower courts differ in their application of the doctrine. Some courts claim that the Hall Street decision has ended the viability of manifest disregard. Others claim that the doctrine lives on as an interpretation of section 10 of the Federal Arbitration Act (FAA),5 despite the Supreme Court's ruling in Hall Street.

Arbitration After Hall Street V. Mattel: What Happens Next?, Stanley A. Leasure

University of Arkansas at Little Rock Law Review

No abstract provided.

Revolution In Law Through Arbitration, The Eighty-Fourth Cleveland-Marshall Fund Visiting Scholar Lecture , Thomas E. Carbonneau

Cleveland State Law Review

My subject is arbitration. I explore how its re-emergence during the last forty years has revolutionized the thinking about, and the practice of, law. The development of a "strong federal policy favoring arbitration" cast aside traditional acceptations about law and adjudication. The rule of law-the human civilization associated with law and the legal process-has been profoundly, perhaps irretrievably, altered by the rise of arbitration. The landmark cases in labor and employment arbitration-Alexander v. Gardner-Denver Company (the "old time religion") and Gilmer v. Interstate/Johnson Lane Corporation (the "new age"thinking)-attest to the enormous distance that separates past and present concepts of legal …