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Principles of Arbitration Law

Authors: Ware, Stephen J. / Levinson, Ariana R.
Edition: 2nd
Copyright Date: 2023
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  1. Cover Page
  2. Title Page
  3. Copyright Page
  4. Dedication
  5. Preface
  6. Note to Teachers
  7. Summary of Contents
  8. Table of Contents
  9. Chapter 1. What Is Arbitration
    1. § 1 Arbitration Defined
    2. § 2 Contractual Arbitration and Non-Contractual Arbitration; Constitutional Right to Jury Trial
    3. § 3 Arbitration Law Summarized
      1. (a) Post-Dispute and Pre-Dispute Agreements to Arbitrate
      2. (b) Enforcement of Arbitration Agreements
      3. (c) The Arbitration Process
      4. (d) Enforcement of Arbitrator’s Decision or “Award”
  10. Chapter 2. Sources of Contemporary American Arbitration Law
    1. § 4 State Law
    2. § 5 Federal Law
      1. (a) Sources of Federal Arbitration Law
      2. (b) The FAA’s Specific Enforcement of Arbitration Agreements
      3. (c) The FAA’s Broad Applicability: Interstate Commerce, Including Consumer Transactions
      4. (d) The FAA’s Exclusions for Employment and Labor Arbitration
      5. (e) Other Exceptions to the FAA’s Enforcement of Arbitration Agreements
        1. (1) Federal Statutory Claims—from Wilko to McMahon and Gilmer
        2. (2) Sexual Assault and Sexual Harassment
        3. (3) Military Personnel
        4. (4) Residential Mortgage Loans and Whistleblowers
        5. (5) Auto Dealers and Poultry Farmers
        6. (6) Consumer Product Warranties
        7. (7) Bankruptcy
        8. (8) Regulations of Nursing Homes, Student Loans, Securities
        9. (9) Bills to Reduce FAA’s Applicability
  11. Chapter 3. FAA Preemption of State Law
    1. A. FAA Preemption Without Creating Federal Jurisdiction
      1. § 6 FAA as (Non-Preemptive) Procedural Law
      2. § 7 FAA as (Preemptive) Substantive Law
      3. § 8 FAA Creates No Federal Jurisdiction
    2. B. FAA Preemption of State Law Impeding Contract Enforcement
      1. § 9 FAA Preemption Generally Enforces Executory Arbitration Agreements
      2. § 10 FAA Preempts State Law Prohibiting Courts from Enforcing Arbitration Agreements
      3. § 11 FAA Preempts State Law Denying Specific Performance to Arbitration Agreements
      4. § 12 FAA Preempts State Law Denying Enforcement of Agreements to Arbitrate Certain Claims
      5. § 13 FAA Preempts State Law Denying Enforcement of Arbitration Agreements in Certain Types of Transactions
        1. (a) Generally Preempted
        2. (b) Possible Exceptions
      6. § 14 FAA Preempts State Law Raising the Standard of Assent for Forming an Arbitration Agreement
      7. § 15 Reverse Preemption in Insurance: The FAA and McCarran-Ferguson
      8. § 16 Contracting out of FAA Preemption
        1. (a) Agreeing to State Arbitration Law, Instead of the FAA
        2. (b) Rare to Contract out of FAA Preemption
  12. Chapter 4. Formation of Enforceable Arbitration Agreements
    1. A. Formation of Arbitration Agreements
      1. § 17 The FAA and State Law in Contract Formation
        1. (a) Written and Electronic Agreements
        2. (b) The FAA Incorporates State Law of Contract Formation
      2. § 18 Mutual Manifestations of Assent
        1. (a) Manifesting Assent, Generally
        2. (b) Apps and Websites
        3. (c) Assent by Performance
        4. (d) Is the Document a Contract?
        5. (e) Incorporation by Reference
        6. (f) Organization’s Charter or Bylaws
        7. (g) Assent by Agent
        8. (h) UCC Article 2 on the Sale of Goods
        9. (i) Wills and Trusts
      3. § 19 Consideration
    2. B. Defenses to Enforcement of Arbitration Agreements
      1. § 20 Defenses Only from Contract Law
      2. § 21 The Separability Doctrine
        1. (a) The Separability Doctrine Adopted in Prima Paint
        2. (b) The Separability Doctrine Preempts State Law
      3. § 22 Separability Applies to Defenses (Validity), Not Formation
      4. § 23 Delegation Clauses
      5. § 24 Unconscionability and Similar Regulation of Arbitration
        1. (a) Unconscionability, Generally
        2. (b) The FAA’s Constraint on the Scope of the Unconscionability Doctrine
        3. (c) The “Prospective Waiver” Doctrine
        4. (d) Arbitration Organizations’ Policing Against Unconscionability
        5. (e) Quasi-Governmental Policing of Securities Arbitration
      6. § 25 Waiver of the Right to Arbitrate
  13. Chapter 5. Terms of Arbitration Agreements
    1. A. Scope of Arbitration Agreements
      1. § 26 Scope of Arbitration Agreements
        1. (a) Two Meanings of “Arbitrable”
        2. (b) Scope Is Presumptively Decided by Courts
        3. (c) Delegating Scope Issues to Arbitrators
        4. (d) How Courts Decide the Scope of an Arbitration Agreement
        5. (e) Resolving Ambiguities in Favor of Arbitration
    2. B. Multi-Party Agreements and Disputes
      1. § 27 Claims by or Against Those Not Party to the Arbitration Agreement
        1. (a) Party Plaintiff vs. Non-Party Defendant
        2. (b) Non-Party Plaintiff vs. Party Defendant
        3. (c) Assignee’s Right to Compel Arbitration
      2. § 28 Consolidation of, and Stays Pending, Related Proceedings
      3. § 29 Class Actions and Mass Individual Arbitrations
        1. (a) Class Arbitration and Agreements Barring It
        2. (b) Mass Individual Arbitrations
    3. C. Conditions to Arbitration
      1. § 30 Conditions to Arbitration
    4. D. Arbitration Procedure
      1. § 31 Procedure by Contract
      2. § 32 Privacy, Confidentiality, and #MeToo
      3. § 33 Pre-Hearing
        1. (a) Selection of Arbitrator(s)
        2. (b) Pleadings
        3. (c) Filing Fees and Un-Administered Arbitration
        4. (d) Discovery
      4. § 34 Hearing
        1. (a) General Comparison with Trial
        2. (b) Role of Lawyers
        3. (c) Rules of Evidence
        4. (d) Substitutes for In-Person Hearing
        5. (e) Un/Reasoned Awards, and the Role of Precedent
      5. § 35 Remedies
        1. (a) Generally Determined by Contract
        2. (b) Typical Contract Terms
  14. Chapter 6. Enforcement and Vacatur of Arbitration Awards
    1. A. Enforcement of Arbitration Awards
      1. § 36 Confirmation
      2. § 37 Claim Preclusion (Res Judicata)
      3. § 38 Issue Preclusion (Collateral Estoppel)
    2. B. Vacatur of Arbitration Awards
      1. § 39 Overview of Vacating Arbitration Awards
        1. (a) Vacatur of Award Contrasted with Appellate Reversal of Trial Court
        2. (b) Narrow Grounds for Vacatur Save Time and Money
        3. (c) Arbitration Award as Contract Term
      2. § 40 Statutory Grounds for Vacatur
        1. (a) Corruption, Fraud or Undue Means
        2. (b) Evident Partiality or Corruption
        3. (c) Arbitrator Misconduct
        4. (d) Exceeded Powers
      3. § 41 Formerly Non-Statutory Grounds for Vacatur
        1. (a) Un/Restricted Submissions
        2. (b) Restricted Submissions: Agreements Requiring Arbitrators to Apply the Law Correctly
        3. (c) Unrestricted Submissions: Agreements Not Requiring Arbitrators to Apply the Law Correctly
      4. § 42 Federal Preemption of State Law on Vacatur
        1. (a) State Grounds for Vacatur Broader than Federal Grounds
        2. (b) State Grounds for Vacatur Narrower than Federal Grounds
  15. Chapter 7. Labor Arbitration
    1. § 43 Labor Law, Labor Unions, and Labor Arbitration
    2. § 44 Law Governing Labor Arbitration
      1. (a) LMRA Rather than FAA
        1. (1) Section 301
        2. (2) Lincoln Mills
      2. (b) NLRA
      3. (c) RLA
      4. (d) Public Sector Labor Laws
        1. (1) Labor Arbitration of Federal Employees
        2. (2) Labor Arbitration of State and Local Government Employees
    3. § 45 Formation of Enforceable Labor Arbitration Agreements
      1. (a) Labor Arbitration Only Partly Governed by Contract Law
      2. (b) Mutual Manifestations of Assent and Consideration
        1. (1) Manifestations of Assent
        2. (2) Consideration
        3. (c) Defenses to Enforcement of Labor Arbitration Agreements
      3. (1) Contract Defenses and the Separability Doctrine
      4. (2) Non-Contract Defenses to Enforcement
    4. § 46 Terms of Labor Arbitration Agreements
      1. (a) Freedom of Contract
      2. (b) Scope of Labor Arbitration Agreements
        1. (1) Court Determines Scope Unless Agreement Clearly Says Arbitrator Does
        2. (2) Courts Generally Interpret Labor Arbitration Agreements Broadly
        3. (3) Temporal Scope of Labor Arbitration Agreements
        4. (4) Parallel Contract and Statutory Claims
        5. (c) Multi-Party Agreements and Disputes
    5. § 47 Grievance-Arbitration Process
      1. (a) The Grievance Process
      2. (b) Invoking Arbitration and Arbitrator Selection
      3. (c) Preparing for the Hearing
      4. (d) Conferring with the Opposing Advocate
      5. (e) The Arbitration Hearing
      6. (f) Payment of Fees
    6. § 48 The Private Law of Labor Arbitration
      1. (a) Written Opinions and Awards
      2. (b) Persuasive Precedent
      3. (c) Substance of Opinions and Awards
        1. (1) Discharge and Discipline
        2. (2) Contract Interpretation
        3. (3) Technology
        4. (4) Discrimination Cases
        5. (5) Remedies
      4. § 49 Enforcement and Vacatur of Labor Arbitration Awards
        1. (a) Enforcement of Labor Arbitration Awards
  16. Chapter 8. International Arbitration
    1. A. Overview
      1. § 50 Introduction: Commercial Arbitration and Public Law Arbitration
      2. § 51 International Commercial Arbitration: Sources of Law
        1. (a) Treaties, Primarily the New York Convention
        2. (b) National Law
        3. (c) Contracting for the Procedural Rules and Substantive Law to Be Applied to a Particular Case
    2. B. Formation of Enforceable International Commercial Arbitration Agreements
      1. § 52 Formation
        1. (a) Enforcement of Executory Arbitration Agreements
        2. (b) National Law Governs Formation
        3. (c) The Requirement of a Writing
      2. § 53 Separability
      3. § 54 Contract Law Defenses
      4. § 55 Non-Contract Law Defenses: Non-Arbitrable Claims
    3. C. Terms of International Commercial Arbitration Agreements
      1. § 56 Scope of Arbitration Agreements
      2. § 57 Multi-Party Disputes
        1. (a) Claims by or Against Those Not Party to the Arbitration Agreement
        2. (b) Consolidation of, and Stays Pending, Related Proceedings
      3. § 58 Arbitration Procedure
        1. (a) Overview
        2. (b) Pre-Hearing
        3. (c) Hearing
        4. (d) Remedies
    4. D. Enforcement and Vacatur of International Commercial Arbitration Awards
      1. § 59 Enforcement of International Arbitration Awards
      2. § 60 Vacatur and Non-Enforcement of International Arbitration Awards
        1. (a) Introduction: National Law of Vacatur
        2. (b) The Convention’s Grounds for Non-Enforcement of Award
    5. E. International Public Law Arbitration
      1. § 61 Overview of International Public Law Arbitration
      2. § 62 Investment Arbitration
      3. § 63 Treaties Focused on Arbitration of Future Public Law Disputes
      4. § 64 Public International Arbitration Tribunals Arising out of Post-Dispute Arbitration Agreements
  17. Chapter 9. Processes Similar to Arbitration
    1. § 65 Private Judging and Business Courts
      1. (a) Private Judging
      2. (b) Business Courts
    2. § 66 Non-Contractual, Yet Binding, Arbitration
      1. (a) Jury-Trial Right Constrains Non-Contractual Arbitration
      2. (b) Examples of Non-Contractual, Yet Binding, Arbitration
        1. (1) Federal Programs
        2. (2) Government Employees—Federal
        3. (3) Government Employees—State and Local
        4. (4) Railway Labor Act
        5. (5) State “Lemon” Laws
        6. (6) State Auto Insurance Laws
        7. (7) Attorney Fee Disputes
  18. Appendix A. Federal Arbitration Act
  19. Appendix B. New York Convention
  20. Appendix C. Excerpts from Labor Management Relations Act
  21. Table of Cases
  22. Index
  • Publication Date: March 29th, 2023
  • ISBN: 9781636593555
  • Subject: Dispute Resolution
  • Series: Concise Hornbook Series
  • Type: Hornbook Treatises
  • Description: The Concise Hornbook Principles of Arbitration Law is an authoritative and extensively cited treatise on arbitration. It thoroughly discusses general arbitration law—from federal preemption of state law to the formation, performance, and enforcement of arbitration agreements—and provides in-depth coverage of specialized law governing international arbitration and labor arbitration. The last few decades have witnessed the growth of a large body of legal doctrine—from statutes, judicial decisions, and other sources—focused on arbitration. This Concise Hornbook summarizes that body of law, so should be useful to lawyers and scholars researching arbitration law and to students learning about arbitration.

    This Concise Hornbook is designed to be used as the primary or secondary text in a law school course. Many teachers of arbitration design their courses to develop a wide array of practice skills, generally through the use of role-playing exercises. Because this book is clear and concise, students reading it can quickly gain a solid understanding of arbitration’s central concepts and legal doctrines. This efficient use of time enables the teacher to devote many class sessions to role-playing exercises, and discussion of them. This Concise Hornbook can also serve as the primary text for arbitration seminars. Before venturing into a field of scholarship, students generally need a solid foundation in the field’s central concepts and legal doctrines. This book provides that foundation with only a limited amount of reading, thus enabling students to devote substantial time to the seminar’s more-advanced work of reading scholarly articles and writing original papers.