Dispute Resolution and Arbitration Commons^™

Public Civil Discourse: A New Domain For Dispute Resolution, Richard C. Reuben

Faculty Publications

We in dispute resolution can view civil discourse about public issues - a direct, deliberative way of exercising democracy itself - as a new but related field in which we can apply our skills and services, and this theme edition of Dispute Resolution Magazine is intended to help those of us in dispute resolution cross the isthmus into what for many of us is the new world of civil discourse.

Unchecked: How Frazier V. Citifinancial Eliminated Judicially Created Grounds For Vacatur Under The Federal Arbitration Act, Sean C. Wagner

Oklahoma Law Review

No abstract provided.

Penalty Clauses And The Cisg, Jack Graves

Scholarly Works

Commercial agreements often provide for “fixed sums” payable upon a specified breach. Such agreements are generally enforced in civil law jurisdictions. In contrast, the common law distinguishes between “liquidated damages” and “penalty” clauses, enforcing the former, while invalidating the latter as a penalty. The UN Convention on Contracts for the International Sale of Goods (CISG) does not directly address the payment of “fixed sums” as damages, and the validity of “penalty” clauses has, traditionally, been relegated to otherwise applicable domestic national law under CISG Article 4. This traditional orthodoxy has recently been challenged—suggesting that the fate of a penalty clause …

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 …

The Arbitration Fairness Act: It Need Not And Should Not Be An All Or Nothing Proposition, Martin H. Malin

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana.

Employment Arbitration 2011: A Realist View, Laura J. Cooper

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana.

Employment Arbitration: The Voice Of (Mostly Vicarious) Experience, Theodore J. St. Antoine

Book Chapters

At the 1999 Annual Meeting of the National Academy of Arbitrators (NAA), Dennis Nolan gave a provocative, influential address on the Academy’s future. He concluded that if the organization was to survive and remain a vibrant force for workplace justice, to the mutual benefit of employers and employees, it must expand beyond its traditional role in labor arbitration based on collective bargaining. According to Nolan, the Academy should also encompass employment arbitration in the nonunion context. Like many good advocates, he may have slightly overstated his case. Although subsequent changes in admission standards now allow the counting of 10 employment …

Article Iii Judicial Power And The Federal Arbitration Act, Roger J. Perlstadt

UF Law Faculty Publications

Arbitrators determine facts and apply law to those facts to bindingly resolve disputes between two or more parties, a task normally reserved for judges. The Federal Arbitration Act (FAA) makes agreements to arbitrate disputes enforceable, including disputes that would normally be heard by an Article III judge, such as those arising under federal law or between parties of diverse citizenship. Accordingly, disputes subject to an arbitration agreement brought before a federal court for adjudication must instead, pursuant to the FAA, be resolved by an arbitrator. Yet, while Article III ostensibly mandates that life-tenured and salary-protected judges decide such disputes, arbitrators—selected …

Conflicts As Inner Trials: Transitions For Clients, Ideas For Lawyers, Jonathan R. Cohen

UF Law Faculty Publications

As times of transition, conflicts often produce significant inner trials for parties. This paper categorizes some of the more common inner trials parties in conflict face (e.g., coping with loss, strong emotions, uncertainty, etc.) and suggests that, as liminal times in people’s lives, some conflicts may also hold within them important opportunities for learning, growth and self-definition. This paper also offers some ideas for how lawyers might best assist clients during such transitions.

Interference Of The Court Of The Seat With International Arbitration, The Symposium, Giulia Carbone

Journal of Dispute Resolution

This article looks upon two fundamental questions: (1) whether arbitrators should comply with a local court's order aimed at suspending or interrupting the running of arbitral proceedings, and (2) what type of remedies should a party receive when courts unjustly interfere with their right to arbitrate. This article will explore these two questions in four parts. Part II focuses on the interference with international commercial arbitration by the court at the place of the arbitration. It does so by taking into account ICC cases, some relevant national judgments, and deals with the solutions offered by Articles 8 and 16 of …

Two Steps Forward, One Step Back: Must The District Court Issue A Stay After A Decision Adverse To Arbitration Is Appealed, And To What Extent Are Arbitration Clauses Applied Retroactively Note, Benjamin Faber

Journal of Dispute Resolution

By creating new rules to fill in the gaps left by the FAA, the federal circuit courts may have muddied the waters of how and why parties assent to arbitration, and the ramifications of their decisions could change how and why parties bind themselves and each other to arbitration in the future. This note will address these issues in six remaining parts. Part II will briefly outline the pertinent facts of Levin." Part III addresses the circuit split on whether federal courts should issue an automatic stay of legislation pending an appeal to compel arbitration under § 16(a)(1)(A) of the …

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps Symposium, S. I. Strong

Journal of Dispute Resolution

Finally, the purpose of this Article is not to provide answers to particular questions, since far too much depends on the individual facts and circumstances of a particular dispute to allow for abstract generalizations. Instead, the goal is to identify a useful framework for analysis of matters relating to international commercial arbitration so that newcomers and infrequent participants in this area of law can approach their specific concerns with a higher degree of understanding and sophistication.

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 …

New Use Of The Doctrine Of Unconscionability To Invalidate Arbitration Agreements In Consumer Contracts, The Note, Valerie Dixon

Journal of Dispute Resolution

Manfredi v. Blue Cross and Blue Shield suggests that this old judicial hostility is alive and well in Missouri jurisprudence. In an effort to level the playing field between parties of unequal bargaining power, Missouri courts have applied the unconscionability doctrine as a way to sidestep the United States Supreme Court's asserted policy favoring arbitration over litigation.7 This note considers the new approach of Missouri courts in invalidating arbitration agreements through the doctrine of unconscionability in the consumer context.

Claim-Suppressing Arbitration: The New Rules, David S. Schwartz

Indiana Law Journal

Binding, pre-dispute arbitration imposed on the weaker party in an adhesion contract—so-called “mandatory arbitration”—should be recognized for what it truly is: claim-suppressing arbitration. Arguments that such arbitration processes promote access to dispute resolution have been refuted and should not continue to be made without credible empirical support. Drafters of such arbitration clauses are motivated to reduce their liability exposure and, in particular, to eliminate class claims against themselves. Furthermore, claim-suppressing arbitration violates two fundamental principles of due process: it allows one party to the dispute to make the disputing rules; and it gives the adjudicative role to a decision maker …

Reading Ricci And Pyett To Provide Racial Justice Through Union Arbitration, Michael Z. Green

Indiana Law Journal

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana

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

Indiana Law Journal

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 …

Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong

Faculty Articles

National courts are becoming increas­ingly involved with international commercial arbitration. Although this observa­tion may be disheartening to those who support the autonomy of the international arbitral regime, the continued interaction between courts and tribunals is less troubling to those who view international commercial arbitration as a "hybrid" method of dispute resolution, with numerous opportunities for permissible "border crossings. "

That is not to say that courts can or should become involved with every as­pect of arbitration. Instead, impermissible "border incursions" diminish the effec­tiveness of international commercial arbitration and could erode public or private support for the international arbitral regime. Therefore, …

Navigating The Borders Between International Commercial Arbitration And U.S. Federal Courts: A Jurisprudential Gps, S. I. Strong

Faculty Articles

Thus, this Article aims to provide newcomers to and infrequent users of international commercial arbitration with a brief introduction to the relationship between international arbitral proceedings and U.S. federal courts. Limitations of space mean that a great deal has necessarily been left out of this discussion. For example, this Article does not describe processes internal to the arbitration, in­stead focusing solely on the interaction between tribunal, parties and court. Fur­thermore, the text often skips over basic propositions of U.S. law that are well­-established in the domestic realm so as to concentrate more heavily on elements that are unique to international …

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

Richmond Journal of Global Law & Business

No abstract provided.