Dispute Resolution and Arbitration Commons^™

Faa Preemption By Choice-Of-Law Provisions: Enforceable Or Unenforceable, Ross Ball

Journal of Dispute Resolution

Generally, choice-of-law provisions allow corporations that do business in several states or countries to draft their agreements and conduct their business in accordance with the law they choose. When the choice-of-law provision is contained in a contract that does not have an agreement to arbitrate, courts generally have no qualms about enforcing them. However, when the contract does contain an agreement to arbitrate, courts are reluctant to enforce the choice-of-law provision as to the arbitration agreement because the Federal Arbitration Act (FAA) governs arbitration agreements. This issue has been the source of much confusion and litigation in the field of …

Circumventing The Supremacy Clause? Understanding The Constitutional Implications Of The United States' Treatment Of Treaty Obligations Through An Analysis Of The New York Convention, Amber A. Ward

San Diego International Law Journal

The United States participation in treaties and other international agreements is becoming more necessary and an increasingly prevalent occurrence as a result of globalization. The rapid pace of technological innovation and more effective means of transportation have caused our world to shrink, making countries even more interconnected. The corresponding explosion of international business and commercial transactions has resulted in high levels of risk and uncertainty due to a complex mix of laws, monetary factors, politics and cultures that vary across countries. For global players, it has become essential to have international agreements that can mitigate the risks inherent in international …

The Effect Of Forum Selection Clauses On District Courts’ Authority To Compel Arbitration, Thomas V. Burch, John W. Hinchey

Scholarly Works

This is a short piece written for the AAA's Dispute Resolution Journal on two competing provisions in Section 4 of the FAA. One provision tells district courts to compel arbitration in accordance with the parties' agreement, including any forum selection clause. The other says that the court can compel arbitration only within its own territory. This, of course, creates a problem when the forum selection clause calls for arbitration in another jurisdiction. This short article addresses the conflict, showing how courts tend to rule on the issue (as of 2006).

Interlocutory Appeals Under The Federal Arbitration Act And The Effect On The District Court’S Proceedings, Michael P. Winkler

Oklahoma Law Review

No abstract provided.

Assessing The Case For Employment Arbitration: A New Path For Empirical Research, David Sherwyn, Samuel Estreicher, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Refreshing Contractual Analysis Of Adr Agreements By Curing Bipolar Avoidance Of Modern Common Law, Amy J. Schmitz

Faculty Publications

Law governing enforcement of ADR agreement not governed by the Federal Arbitration Act (FAA) has been uncertain, and often aimless. This Article therefore calls for clarification of this law, through development of a modern contractual approach for enforcing these non-FAA ADR procedures. Although courts may look to the FAA as a resource for evaluating and developing an enforcement approach, they also should employ modern contract and remedy tools that are more adaptive than the Act's summary enforcement because it allow courts to consider contextual, relational, and equitable factors when determining application of specific enforcement remedies. This allows courts to apply …

Necessity Never Made A Good Bargain: When Consumer Arbitration Agreements Prohibit Class Relief, Thomas V. Burch

Scholarly Works

The American system of arbitration is constantly evolving. From the first formal arbitration tribunal in 1786—established by the New York Chamber of Commerce—to the creation of the Federal Arbitration Act in 1925—passed to suppress judicial hostility towards arbitration -- the system has continuously adapted to accommodate changing business practices and rising judicial concerns over the legitimacy of the institution. In fact, the system’s adaptation has been so effective that the Supreme Court now recognizes a “national policy favoring arbitration.” This “national policy” is the most recent phase of the arbitration evolution, and it raises several concerns. Most significantly, lower courts …

Federal Arbitration Act Preemption, Christopher R. Drahozal

Indiana Law Journal

No abstract provided.

Georgia General Assembly Adopts "Manifest Disregard" As A Ground For Vacating Arbitration Awards: How Will Georgia Courts Treat The New Standard?, John W. Hinchey, Thomas V. Burch

Scholarly Works

Generally, courts may only set aside arbitration awards on the grounds listed in the Federal Arbitration Act or the applicable state arbitration code. However, all federal circuit courts and a few state courts have adopted a non-statutory exception that allows a court to overturn an arbitrator's decision if the arbitrator has exemplified a "manifest disregard" of the law.

In 2002, after several years of tentative lower court decisions, the Georgia Supreme Court, in Progressive Data Systems v. Jefferson Holding Corporation, held that manifest disregard is not a proper ground for vacatur in Georgia. The court emphasized that Georgia's Arbitration Code …

Reply To Judge Easterbrook: Regarding History As A Judicial Duty, Harry F. Tepker

Oklahoma Law Review

No abstract provided.

“All Aboard!” An Overview Of The Continuing Debate Regarding The Enforceability Of Dispute Resolution Provisions Of Filipino Seamen Employment Contracts, Richard V. Blystone

ExpressO

No abstract provided.

The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park

Faculty Scholarship

If a pollster asked a random selection of Americans for a one-line verbal portrait of arbitration, common responses might include the following: (i) private litigation arising for construction and business disputes; (ii) a mechanism to resolve workplace tensions between management and labor; (iii) a process by which finance companies and stock brokers shield themselves from customer complaints; (iv) a way to level the playing field in deciding commercial controversies among companies from different parts of the world; (v) the way big corporations use NAFTA to escape regulation. To some extent all would be correct.'

Unfortunately, these different varieties of arbitration …

The Specificity Of International Arbitration: The Case For Faa Reform, William W. Park

Vanderbilt Journal of Transnational Law

Arbitration by its nature is polycentric: one might more accurately speak of arbitrations in the plural. A wide variety of disputes are included in one category, implicating differences related to the sophistication of the parties, the character of the disputes, and the public interests at stake. The current legal framework for arbitration conducted in the United States attempts to squeeze all types of arbitration into the Procrustean bed of a single set of standards for judicial review.

The United States should seriously consider eliminating judicial discretion to review the substantive merits of awards in international cases. The domestically nourished doctrine …

On The Importance Of Institutions: Review Of Arbitral Awards For Legal Errors, Peter B. Rutledge

Scholarly Works

In my view, legislatures, rather than courts or parties, should decide whether (and to what extent) courts should review arbitral awards for errors of law. The optimal legislative mechanism should not be compulsory but should offer parties the choice whether to "opt-in" to this regime of expanded review by inserting language to that effect in their arbitration agreement. A legislative solution with an "opt-in" feature has a sounder doctrinal foundation, better respects the distribution of power between various branches of government, involves a lower risk of error and minimizes transaction costs. From this position, two additional conclusions follow: first, courts …

Ending A Mud Bowl: Defining Arbitration’S Finality Through Functional Analysis, Amy J. Schmitz

Faculty Publications

The Federal Arbitration Act (FAA) and Uniform Arbitration Act (UAA), on the state level, prescribe a nearly identical procedural and remedial scheme for promoting independent, self-contained arbitration. To that end, both acts curtail courts' review of arbitration awards, by limiting the grounds for vacating awards to those aimed at ensuring only basic procedural fairness. Nonetheless, seemingly "pro-arbitration" impulses have driven some courts' eager application, or misapplication, of the FAA/UAA statutory scheme to enforce dispute resolution agreements that reject the acts' limited review prescriptions. This Article tackles this arguable abuse of the FAA/UAA scheme, by proposing a functional analysis for defining …

Is The U.S. Out On A Limb? Comparing The U.S. Approach To Mandatory Consumer And Employment Arbitration To That Of The Rest Of The World, Jean R. Sternlight

Scholarly Works

After quickly summarizing the landscape of mandatory arbitration both within and without the United States, this article will consider why mandatory arbitration is treated so disparately, whether it is problematic that approaches to mandatory arbitration are so varied among countries, and what the differing jurisdictions can and should learn from one another. The article concludes that the United States Congress should be very concerned with the fact that we are treating mandatory arbitration more permissively than other countries. I, along with many others, have previously presented many arguments for why mandatory arbitration is problematic. Our outlier status on this issue …

Mandatory Binding Arbitration And The Demise Of The Seventh Amendment Right To A Jury Trial, Jean R. Sternlight

Scholarly Works

How can the body of law which protects the federal constitutional jury trial right be reconciled with a body of arbitration law which often states such propositions as (1) arbitration is favored; (2) arbitration clauses may be upheld absent a showing of voluntary, knowing, or intentional consent; (3) the party opposing arbitration bears the burden of proof; (4) arbitration can sometimes be imposed using unsigned envelope "stuffers," handbooks, and warranties; and (5) ambiguous contracts should be construed broadly to support arbitration? To be valid, in most courts the waiver and whether it was actually state arbitration clauses need not be …

Dispute Resolution In The Boundaryless Workplace, Katherine V.W. Stone

Cornell Law Faculty Publications

Since the Supreme Court's decision Gilmer v. Interstate/Johnson Lane Corp. which compelled an employee to submit his age discrimination claim to arbitration under the Federal Arbitration Act (FAA), there has been a dramatic increase in the number of nonunion firms adopting arbitration systems. At the same time, there has been a flood of lawsuits challenging these employment systems, and a corresponding avalanche of judicial opinions addressing the legal issues left open in Gilmer – issues such as the problematic nature of consent in employment arbitration, the deficiencies in due process, and the applicability of the FAA to employment contracts. These …

Arbitration: Arbitration In The 21st Century: Where We've Been, Where We're Going, Todd Baker

Oklahoma Law Review

No abstract provided.

Rustic Justice: Community And Coercion Under The Federal Arbitration Act, Katherine V.W. Stone

Cornell Law Faculty Publications

Arbitration clauses are appearing in a wide variety of consumer transactions, including routine product purchase forms, residential leases, housing association charters, medical consent forms, banking and credit card applications, and employment handbooks. In the past fifteen years, the Supreme Court has reinterpreted the Federal Arbitration Act (FAA) so as to grant tremendous deference to private arbitral tribunals. By doing so, it has altered the landscape of civil litigation, taking many consumer claims out of the legal system and relegating them to private tribunals. In this Article, Professor Stone assesses the recent trend toward the privatization of civil justice in light …

Arbitration: Shaffer V. Jeffery: The Oklahoma Supreme Court Rejects The Separability Doctrine And Takes A Step Back In The Enforcement Of Arbitration Clauses Under Oklahoma Law, John Douglas Stiner

Oklahoma Law Review

No abstract provided.

Mandatory Arbitration Of Individual Employment Rights: The Yellow Dog Contract Of The 1990s, Katherine V.W. Stone

Cornell Law Faculty Publications

No abstract provided.

Arbitration: Back To The Future, Theodore J. St. Antoine

Other Publications

A strong new ideological current is sweeping through much of the Western World. At one extreme it manifests itself as a deep distrust of big government. In more modest form, it is a sense of skepticism or disillusionment about the capacity of big government to deal effectively with the problems confronting our society. In continental Europe today there is much talk of the principle of "subsidiarity," the notion that social and economic ills should be treated at the lowest level feasible, usually the level closest to the people directly affected. In the United States there is much talk of "privatization," …

The Federal Arbitration Act And Individual Employment Contracts: A Better Means To An Equally Just End, William F. Kolakowski Iii

Michigan Law Review

This Note argues that courts should adopt a narrow reading of the employment contract exception to the FAA, thus making arbitration agreements in most individual employment contracts enforceable under the Act. Part I argues that a textual analysis of the FAA supports a narrow interpretation of the exception. Because some courts and commentators have argued that the text favors a broad interpretation, Part II examines the legislative history of the exception and demonstrates that no firm conclusions can be drawn about congressional intent regarding the exception's scope. Finally, Part III demonstrates that a narrow reading of the exception best serves …

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 …

Enforcement Of Arbitration Clauses Against Deceived Franchisees, William H. Daughtrey Jr.

University of Richmond Law Review

Resolving the issue of fraud in the inducement of franchise agreements is an area that merits refinement. To save time and expense, arbitration-which bars both parties from the court system to resolve disputes-is a significant contemporary development. The reliance on arbitrators, who are not bound by precedent, is especially serious when their authority to resolve a particular controversy comes from a franchise agreement. Such agreements have been the subject of legislative inquiry, administrative action and litigation largely because of the informational imbalance between franchisors and franchisees during the course of negotiating their agreements. This article argues that, because franchisees generally …

The Arbitrability Of Domestic Antitrust Claims: An Evaluation Of The American Safety Doctrine, Edward G. Heilig

Touro Law Review

No abstract provided.

Incorporation Of State Law Under The Federal Arbitration Act, Michigan Law Review

Michigan Law Review

This Note proposes a solution to this choice-of-law problem. Section I surveys the courts' response to Congress's silence and finds confusion and disarray. Section II argues that courts should apply the state law pertinent to arbitration unless that law places heavier burdens on arbitration contracts than on other contracts; where state law does discriminatorily burden arbitration, the courts should apply the pertinent state rules applicable to "any contract." It concludes that the "grounds . . . for the revocation of any contract," although determined as a matter of federal policy, are to be found in state law rather than in …