Arbitration Law in a Nutshell
Author:
Carbonneau, Thomas E.
Edition:
4th
Copyright Date:
2017
21 chapters
have results for arbitration a nutshell
Acknowledgments 4 results
- I also acknowledge the earlier permission from Charles Kitzen and Juris Publishing, Inc. to rely on my treatise which they publish for part of the content of the Nutshell. I have, however, completely rewritten and reorganized the
- In particular, I have expanded the consideration of global arbitration to place the American experience in arbitration in a more complete context. The emphasis on themes is intended to promote a deeper understanding of the operation and significance of arbitration in the American legal system. I have tried to make the contents of the work more accessible and interesting to the reader. There is, I believe, a better communication of the ideas and information. I have also revamped the organization of the work and re-conceptualized my perceptions of arbitration to account more thoroughly for its historical evolution and contemporary use.
- I am grateful to: (1) Ms. Wanda Boone for her contribution to this project. Ms. Boone typed and retyped, probably by a factor of twenty, all of the pages that are now in print between these covers. She performed her task with unfailing competence, cheerfulness, and expedition. I appreciated her constant professionalism. (2) Ms. Sherri Prosser who made a major technical contribution to establishing the manuscript at a critical time. Her work was both necessary and impeccable. (3) Mengbei Wang, a former research assistant and an LL.M. graduate of Penn State Law, for her editing, proof-reading, and typing assistance. She also supplied valuable research work.
- At this stage of my career, I understand more than ever the fragility and often illusory character of academic work. I also understand the enormous difficulty of depicting an idea or concept on the written page. Honoré de Balzac would have said, and did say, that each human being harbors within him or herself the vast spiritual potential of humanity, along with its frailties and infirmities. For Balzac, this was the ‘human condition’. It is a fate that we all must endure—some with perhaps greater defiance than others.
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Introduction 21 results (showing 5 best matches)
- Nutshell,
- Arbitration challenges traditional views of adjudication, the role of law and the legal system, and the established conventions of law practice. Lawyers—once skeptical of arbitration and inclined to disparage it as a fanciful, negligible form of litigation—are now an integral part of the arbitration process. Lawyers function as arbitrators, draft arbitration agreements, and represent parties in arbitral proceedings and related judicial litigation. The legal profession’s
- Labor arbitration
- While once reputed to be a wayward form of adjudication—limited, by its recurrent application in specialized fields and, therefore, both irrelevant and superfluous—today, arbitration is prominent and of consequence in the U.S. legal system. It supplies affordable, effective, and indispensably efficacious adjudication for civil litigation. It guarantees citizen access to justice and the redress of grievances. SCOTUS is principally responsible for the
- Maritime arbitration
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Copyright Page 4 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- © West, a Thomson business, 2007, 2009
- © 2017 LEG, Inc. d/b/a West Academic
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Chapter 2 Terms and Concepts, Adjudicatory Operation, and the Case Trilogies 28 results (showing 5 best matches)
- A contract to arbitrate disputes can take one of two forms: A submission or an arbitral clause. is an arbitration agreement in which the parties agree that an existing dispute will be submitted to arbitration. is a contract under which the parties promise to submit possible future disputes to arbitration. In either of its two manifestations, an arbitration agreement must be in some written form and should satisfy the standard requirements for contract formation. In light of the ‘emphatic federal policy favoring arbitration’ and the best practices standards in the field, both of these requirements have become more flexible. A written form of the contract for arbitration can be implied from an exchange of commercial documents. Depending on the circumstances, an email or even an ascertainable conversation between the parties could satisfy the ‘in-writing’ requirement. The judicial policy and support for arbitration facilitates the making of valid agreements for arbitration. The...
- Third, the U.S. Supreme Court has consecrated arbitral proceedings as a viable form of adjudication. According to the Court, arbitration is every bit as good as a court proceeding for the protection of legal rights. Legal rights, therefore, are not erased or diminished by the submission of claims to arbitration. Arbitration gives full effect to the implicated rights. Moreover, each arbitration stands on its own and has no significance beyond the private agreement and relationship that gave rise to it. As a matter of law, each arbitration is a stand-alone and self-contained event. Finally, the unstated view in many of the U.S. Supreme Court’s rulings is that arbitration is, as a matter of law, in the parties’ and society’s best interest. Some access to justice is better than no access at all. In some measure, this position undermines the role of the . As long as a reference to arbitration has been made, the parties must always have intended to agree to arbitrate disputes no matter...
- Arbitrability establishes which disputes can be lawfully submitted to arbitration. A finding of inarbitrability acts as a defense to the enforcement of an arbitration agreement or—ultimately—an arbitral award. thereby limits the parties’ right to engage in arbitration and the arbitrators’ right to rule. Inarbitrability can arise as a result of the subject matter of the dispute or because of contractual flaws in the arbitration agreement. Under , a dispute cannot be submitted to arbitration—as a matter of law—because it involves matters directly linked to the public interest. Matters of criminal culpability generally are deemed inarbitrable because courts have exclusive jurisdiction over this type of Bill of Rights litigation. Therefore, unless plea-bargaining is considered a form of arbitration (a dubious proposition at best), allegations of bribery, criminal violations of RICO, or serious breaches of tax regulations would be inarbitrable because these matters involve public policy...
- Inarbitrability also functions on the basis of contract. In these circumstances, the challenges to arbitrability converge on the contract of arbitration—its existence, making, and scope. The allegation of can be based upon the lack of an agreement to arbitrate, a contract deficiency in an existing agreement, or the limited scope of application of an otherwise existing and valid arbitration agreement. Under some laws, there also can be an actionable failure to follow the provisions of the arbitration agreement in organizing the arbitration. Contract is the gateway to arbitration. . Without an actual, enforceable, and applicable agreement, there is no legal obligation to arbitrate.
- A few case law rules have a direct bearing upon the inarbitrability defense. First, courts generally interpret a broadly-worded arbitration agreement as referring to all transactional disputes that arise between the parties. Therefore, a
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Chapter 11 Arbitration and Global Commerce 126 results (showing 5 best matches)
- From a Western perspective, the Chinese domestic legal restrictions on arbitration constitute State intrusion upon contract freedom and undermine the adjudicatory legitimacy of arbitration. For example, article 16 of the 1995 Chinese law on arbitration establishes the requirements for a lawful and enforceable arbitration agreement. To enter into a valid contract for arbitration, the contracting parties must not only agree to arbitrate and identify the type of disputes that will be submitted to arbitration, but they must also designate
- In its current incarnation, the UAE law on arbitration represents a qualified acceptance of arbitration. In historical and systemic terms, it reflects a characteristic civil law approach to the legal regulation of arbitration. The statutory provisions are converted into articles of the Code of Civil Procedure. This practice mirrors the civilian regulation of arbitration that applied in France prior to 1980. In the modern era, French law has strongly supported arbitration and its autonomous operation. In 1980, the French Parliament sought to solidify arbitration’s position in French law prior to the transition between presidential administrations by enacting legislation that completely updated the French law on arbitration. The 1980 law was exemplary in both content and language. It would eventually serve as a model for many of the innovations in ICA. It represented a codification of an evolving decisional doctrine on arbitration elaborated by French courts, especially the Court of...
- In 2008, the DIFC—in collaboration with the LCIA (London Court of International Arbitration)—became the DIFC-LCIA, rendering arbitrations ‘seated’ there subject to LCIA Rules. The seat of an arbitration can differ from the jurisdiction(s) in which the arbitral proceedings are held. There is also an arbitration center in Abu Dhabi that specializes in disputes that arise in construction projects and commercial contracts. In 2013, the Abu Dhabi Centre published new regulations to modernize and improve the quality of its administration of arbitrations.
- For a time, the U.S. Supreme Court ignored the utility of arbitration as a means of building an effective adjudicatory order. As a result, the U.S. legal system was late in embracing . Once it acknowledged the value of arbitration in conducting civil litigation, however, the Court became its most ardent and unyielding advocate. In fact, the Court’s numerous rulings on arbitration became a veritable of the principles and doctrines favoring arbitral autonomy and independence. The Court’s willingness to address arbitration issues gave arbitration a full-blown essentially integrated arbitration into the framework of the Bill of Rights. Like the French the American High Court crafted legal principles that remedied the deficiencies of the U.S. law of arbitration—from making arbitral agreements and awards nearly impervious to attack to
- An international government agency—the (United Nations Commission on International Trade Law)—has played a critical role in the global development of arbitration. Among other things, it created a on ICA, the purpose of which is to allow States (heretofore, untouched by the ‘magic’ of arbitration) to convert themselves quickly and effectively into jurisdictions that favor arbitration. In particular, many Latin American countries have adopted the UNCITRAL Model Law on ICA as their national arbitration law in order to participate in global commerce. When a State adopts the model law, it sends a positive signal about the acceptance and autonomous operation of arbitration in its territory.
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Chapter 7 Adhesive Arbitration in Consumer Transactions 40 results (showing 5 best matches)
- Consumer transactions are another area in which the use of arbitration became more prevalent. All types of consumer transactions—the use of credit cards, the provision of banking services, the purchase of a vehicle or of a mobile home, pest control, buying shares of stock, and membership in a health maintenance organization—involve ‘mandatory’ or unilaterally-imposed arbitration. Arbitration agreements are present in all sectors of the economy. Agreeing to arbitration is now essential to individual participation in the marketplace. As elsewhere, the expansion of arbitration has been fostered by the U.S. Supreme Court.
- coerced arbitration
- resistance to arbitration
- Arbitration has had a long-standing role in the . Stock exchanges and brokerage firms have always favored the recourse to arbitration to resolve industry disputes. Employees also have participated in arbitration for some time. What is more recent is the use of arbitration to resolve disputes between brokerages and their customers. What is equally new is the submission of employee disputes involving statutory rights to arbitration. Statutes that create these rights provide special protections for weaker, disadvantaged parties; they also are intended to safeguard the public interest in a viable financial marketplace and a diverse workforce. While the evolution of arbitration in these additional settings has been gradual, it is unmistakable.
- The Court made arbitration agreements nearly impossible to challenge on contract grounds. Arbitration agreements are that cannot be voided because they are imperfectly made as a contract. Courts do not generally perceive unilateral agreements to arbitrate disputes as unfair or unenforceable. Therefore, sellers and manufacturers can force consumers to agree to arbitration as a prerequisite for engaging in transactions. The choice of remedy is made exclusively by the imposing party. The controlling justification appears to be that all parties benefit from the referral of disputes to arbitration.
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Chapter 10 International Commercial Arbitration (ICA) in the United States 42 results (showing 5 best matches)
- The Convention’s objective is to create a for the enforcement of foreign or international awards and thereby solidify the operation of arbitral adjudication. For example, Article II(1) provides that the Contracting States shall eliminate any systemic hostility to arbitration by recognizing the lawful standing of arbitration contracts. Arbitration agreements do not violate public policy strictures and arbitration does not constitute a usurpation of public judicial authority. By adhering to the Convention, Contracting States agree to recognize arbitration as a Under Article II(3), a motion to compel arbitration can be defeated only by establishing that the arbitration agreement is null and void, inoperative, or incapable of being performed because of a deficiency in party intent, party capacity, or the clarity of language. These grounds are defenses to contract enforcement. Contracting States, therefore, undertook to enforce arbitration agreements if they satisfied the basic...
- on arbitration has undercut much of the debate about the impact of national sovereignty and national law in the implementation of the Convention. In fact, the continuing global ratification of the Convention has reversed the traditional tendency of States to make local exceptions to an agreed-upon international regime. Moreover, States appear to be competing to enact the most liberal laws on international commercial arbitration. The UNCITRAL Model Law on ICA and its Model Rules on Arbitration also indicate a trend toward . Parties seeking to enforce arbitration agreements and awards, of course, are always subject to the particularities of their case and a given national law and judiciary. By and large, however, national laws are no longer a constraint upon arbitration. States understand the international commercial importance of arbitration and actively promote themselves as venues in which to hold international arbitral proceedings. The “deregulatory” movement and the State...
- The New York Arbitration Convention is an exemplary framework—perhaps the most successful UN treaty in terms of transnational impact and law-making. Although its longevity (nearly sixty years) creates an urgent need for updates and revisions, , a thorough recrafting, it is, in many respects, a model for on arbitration—albeit from a Northern- and Western-country perspective. Rather that attempt a comprehensive regulation of the arbitral process and its many aspects, the Convention focuses on the two most essential features of any legal regulation of arbitration (the validation of arbitration
- Arbitration has acquired a large share of the volume of in both the international and domestic areas, and its scope of application has not been reduced. The acceptance of arbitration is a necessary passport to participation in international commerce, and it appears to have become a primary vehicle for dispensing civil justice in the United States. Of necessity, lawyers and business enterprises are developing a substantial acquaintance with, and professional expertise in, arbitration. The accomplishments of commercial arbitration should not be minimized. In the area of transborder commercial relations, it has established and maintained a procedural, and perhaps a substantive, ...for the impartial, expert, and enforceable resolution of international commercial conflicts. International business and globalization would not be possible without arbitration. It even attenuates the effects of sovereignty in trade relations and facilitates the participation of States in international...
- The consistency and unequivocal character of the Court’s policy on international arbitration, as well as its eventual merger with the regulatory policy on domestic arbitration, can best be explained by the Court’s need to manage judicial and the federal judicial system. Because international litigation imposes an additional and more onerous burden upon the federal courts, the management of national judicial resources required a universally effective and functional process of arbitratal adjudication. Arbitration would work if arbitration agreements and awards were conclusively enforced. The same “managerial” rationale explains the compromise of rights that occurred in the federalization of U.S. domestic arbitration law and the application of domestic arbitration to statutory conflicts.
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Chapter 3 The Central Themes of American Arbitration Law 86 results (showing 5 best matches)
- An developed between the U.S. Supreme Court and a number of lower federal and state courts in which the lower courts criticized the Court’s support for arbitration—in particular, they contested the legality and desirability of adhesive arbitration. The Court appeared to be convinced that, if any exceptions to arbitrability were made, arbitration would cease to resolve effectively the problems of civil litigation. Its unequivocal support for arbitration was built upon the received wisdom that tolerating exceptions to a legal rule announces the rule’s eventual demise. The exception(s) inexorably become the rule. In terms of arbitration, permitting exceptions to arbitrability would, over time, lead to the reassertion of exclusive judicial jurisdiction over civil litigation. Mindful of the long-standing toward arbitration, the Court believed it could quell the only by developing a legal doctrine that categorically supported the legitimacy and desirability of arbitration. Any hint of...
- The bargain concept of arbitration also fostered the ‘unobstructed’ enforcement of arbitration agreements. The enforcement of arbitration contracts is governed by a nearly irrebuttable presumption of validity, making enforcement virtually automatic. Needless to say, then, court scrutiny of these agreements is far from demanding. Like arbitral awards, arbitration agreements are exempt from stringent judicial scrutiny. Thanks to the Court, a long-standing history of judicial and legislative hostility and derision toward arbitration was replaced by a policy of unequivocal support. From suspect (even unlawful) transactions, arbitration agreements became invulnerable and unassailable ‘super’, ‘Hulk’-like contracts. The legal predilection to support arbitration was both firm and conclusive; other legal concerns (even fundamental ones) were negligible in comparison. The federalization of U.S. arbitration law supported this development. Despite constitutionally-established state authority...
- judicial policy favoring arbitration
- SCOTUS’ decisional law on arbitration increased the arbitrator’s authority at the head of the process in other ways. By allowing arbitrators to rule on preliminary procedural matters (that could make or break the reference to arbitration, waiver), the Court all but guaranteed rulings that supported arbitration and arbitrability. The Court also extended and strengthened the arbitrators’ the parties’ arbitration agreement. Not only could arbitrators determine whether the arbitration agreement existed, was a valid contract, or reached the submitted dispute, but they could also decide the particularities of the parties’ reference to arbitration ( whether it included a class action waiver; authorized class arbitration proceedings; provided for institutional or arbitration; contained a choice of governing law on arbitration; limited arbitrator procedural, decisional, or remedial authority; regulated the conduct of the arbitral hearings; contained stipulations on the form and content of...
- In the ‘old order’, arbitration had been relegated to an obscure corner of the litigation process. It was known and even recognized, but it was perceived as a limited, specialized adjudicatory mechanism. In a word, arbitration was an eccentric procedure that existed at the fringes of the legal system for a modest number of cases generated by relatively groups and activities. Even when employed for the purpose of achieving the ends of basic adjudication, the outcomes in arbitration were not comparable to the adjudicatory results reached by the judiciary. Arbitration originated in a . Arbitrators were not appointed by a U.S. president or elected by a constituency of American taxpayers. In fact, everything about arbitration smacked of abridgement and abbreviation. It was, at best, ‘AA’ ball, and certainly not the ‘show’; possibly a ‘bunt single’ but not a home run and even less a grand slam. The received wisdom disparaged arbitration by describing it as a trial process for merchants...
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Chapter 4 The Federal Arbitration Act 54 results (showing 5 best matches)
- The U.S. Arbitration Act, , more commonly known as the Federal Arbitration Act or the FAA, was enacted in 1925 as . It was intended to promote consistent determinations between state and federal courts on issues of arbitration. initiated the effort to secure federal legislation on arbitration and helped to shepherd it through the U.S. Congress. Divergent results in arbitration litigation would have crippled the then-recent New York state statute on arbitration. The latter provided strong support for arbitral adjudication because of its ability to resolve commercial disputes among and within various trade groups. Without a federal counterpart promoting a similar regime, forum-shopping would have become prevalent and created chaos in the American law of arbitration. The outcome would have been an ineffective arbitration process and a less robust and prosperous national economy.
- At the time of its enactment, no one knew or could have had any idea of the legislation’s ultimate destiny. With a strong continuous ‘assist’ from SCOTUS, it would become a landmark law that served as the basis for conducting a toward arbitration. Over time, arbitration would become an effective private alternative to judicial litigation. The FAA validated agreements to arbitrate by proclaiming them to be ordinary contracts; as a result, an agreement to submit disputes to arbitration did not violate public policy. The federal statute provided circumscribed grounds for the judicial assessment of awards. In fact, court scrutiny of arbitral awards was often lax. The FAA’s foremost aim was to make arbitration lawful and invest it with the systemic independence it needed to function effectively as an autonomous adjudicatory mechanism. The Court’s unfailing and unqualified support for arbitration eventually created
- The original congressional proponents of arbitration, therefore, had an ambivalent view of arbitration. They wanted to respond to the special interest request for legislation, but they had a limited understanding of arbitration and its operation. Having recourse to a jury at the outset of an arbitration is both unwarranted and dangerous. It invites the type of
- Despite the relative complexity of its language, Section Sixteen makes a simple point. It confirms and gives legislative approval to the court-created “
- Under FAA § 3, in compliance with the ‘emphatic policy’, courts grant petitions to compel arbitration and stay judicial proceedings. Parties seeking a stay of a judicial proceeding must establish the existence of a valid arbitration agreement. This is the critical requirement for the grant of a stay, but not for the commencement of an arbitral proceeding. According to one federal district court, there is “little reason to require that an arbitration be commenced by a defendant against itself before a stay [of a court proceeding] can be ordered.” In effect, the federal policy demands that, if there is an enforceable contract of arbitration, a judicial action can be stayed even though no arbitral proceeding has been instituted. As “long as a written agreement to arbitrate exists[,] there is no specific requirement that arbitration actually be pending before a stay of litigation can be granted.” This reasoning constitutes a liberal interpretation of FAA § 3’s requirement that “the...
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Chapter 8 Workplace Arbitration 51 results (showing 5 best matches)
- There are two types of labor arbitration. First,
- Labor arbitration is a sophisticated system of arbitration that developed largely on its own in response to the contentious character of labor-management relations. Labor arbitration did not originate through, and is not governed by, the FAA. Section 301 of the Labor Management Relations Act of 1947 gave rise to this process of arbitration. Court’s ruling on commercial arbitration matters borrowed heavily from labor arbitration cases and used their holdings as of U.S. arbitration law. The influence of labor arbitration is especially evident in the grounds for vacatur or confirmation of awards and in the definition of the role of contract in arbitration.
- According to well-settled Court doctrine, arbitration was nothing more than another form of trial that had no impact upon substantive rights. Arbitration did not diminish the content of these rights. As a result, the “clear and unmistakable” or “knowing and voluntary” standard applied to guaranteed by statutes, not the choice of alternative procedural remedies. Moreover, a conclusion that arbitration was a lesser form of adjudication or ill-suited to the resolution of complex statutory or other legal claims evidenced a hostile and prejudicial view of arbitration that contradicted the FAA. The latter’s foremost objective was to to arbitration.
- , provided the impetus for the creation of a new framework of arbitration. Employment arbitration exists despite the ‘ . Employment arbitration differs from traditional labor arbitration in that it applies to unrepresented, and their contracts or work relationships. The agreement to arbitrate is not part of a collective bargaining agreement negotiated by union officials on behalf of unionized employees. Rather, the employer inserts arbitral clauses in individual employment contracts or simply incorporates an arbitration agreement into an relationship, usually as a precondition to employment or as a requirement for continued employment. Therefore, the recourse to arbitration is mandatory and imposed by the employer. Generally, such agreements contain an express and comprehensive enumeration of the statutory claims that the employee ‘agrees’ to ‘submit’ to arbitration. This practice reflects, among other things, the employer’s desire to avoid court litigation and achieve an...
- Court reached a conclusion that elevated the policy of nondiscrimination above the policy favoring arbitration. The ruling was an unfriendly determination to arbitration. It did not favor the systemic integrity of arbitration, challenging both the of the process. Title VII claims, therefore, could be submitted—at the employee’s choice—to arbitration, to the courts, or to both types of proceedings. Thus, even though an arbitral determination had been rendered, a court was obligated to consider anew the Title VII suit and the plaintiff’s claims. Further, the court could attribute to the arbitral award whatever evidentiary weight and adjudicatory significance it thought appropriate.
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Chapter 5 Overview of the Arbitration Cases 124 results (showing 5 best matches)
- Sections 9–11 substantiated “a national policy favoring arbitration with just the limited review needed to maintain arbitration’s essential virtue of resolving disputes straightaway.” Permitting parties to introduce the review of awards into the process by party agreement would “bring arbitration theory to grief in [the] post-arbitration process.” “[F]ull-bore legal and evidentiary appeals” would erode arbitration’s finality, flexibility, and frugality. In a word, judicialization would transform arbitration into the pathology it sought to cure.
- The federalism trilogy left no doubt that the U.S. law of arbitration had been . It eliminated the legislative authority of states to regulate arbitration. The obligated all statutory provisions that implicated arbitration to conform to the FAA’s rules and its underlying policy. The Court had transformed the U.S. law of arbitration into a cohesive and coherent
- to engage in arbitration. The directive in FAA § 2 to validate arbitration agreements and render them enforceable applied to all courts at all levels of the legal system. According to the Court, a like challenge to arbitrator jurisdiction was based on state statutory provisions that disputes arising under the enacted law could only be heard by courts. Because the statutory restriction placed limits on the availability of arbitration, it impermissibly thwarted . Moreover, the incorporation of a jurisdictional delegation clause allowed arbitrators to perform the task of a court and decide the validity of their authority to rule. Jurisdictional challenges could be made on various grounds: that the parties never entered into an arbitration agreement, that an identifiable agreement to arbitrate was a defectively formed contract, that a properly established contract of arbitration did not cover the dispute in question, or—finally—that the instituted arbitration deviated materially from...
- Despite moments of opposition to the federal policy favoring arbitration, courts, as a rule, generally give effect to arbitration agreements and enforce arbitral awards. Judicial resistance to arbitration has been, and continues to be, infrequent and largely inconsequential. The strong presumptions of arbitrability and enforceability apply as much to employment and consumer arbitration as they do to commercial and labor arbitration. Divisions within the Court on matters of arbitration law occur in almost every case, but the disagreement is often based on debates about analytical details and occurs in circumstances in which it is ‘safe’ to dissent. The Court has maintained a determined 5–4 majority favoring arbitration over fifty cases and for fifty years.
- Federal law in the terms of the Arbitration Act governs that issue in either state or federal court. Section 2 is the primary substantive provision of the Act. . . .Section 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The courts of appeals have. . . .consistently concluded that questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration. We agree. The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. . . .
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Chapter 6 Inarbitrability on the Basis of Subject Matter 36 results (showing 5 best matches)
- It is ethically permissible to include in a retainer agreement with a client a provision that requires the binding arbitration of fee disputes and malpractice claims provided that (1) the client has been fully apprised of the advantages and disadvantages of arbitration and has been given sufficient information to permit her to make an informed decision about whether to agree to the inclusion of the arbitration provision in the retainer agreement, and (2) the arbitration provision does not insulate the lawyer from liability or limit the liability to which she would otherwise be exposed under common and/or statutory law.
- , none of these consequences is desirable in terms of their impact on arbitration. Complex rule predicates would eliminate the simplicity and clarity of the reference to arbitration; they could transform the law of arbitration into a litigious, unworkable, and self-destructive body of legal principles, eliminating most, if not all, of its benefits as an alternative adjudicatory framework. Such a development would contradict the letter and spirit of the FAA, especially Section Two, causing arbitration’s institutional standing and practical utility to deteriorate. The march of the strong federal policy favoring arbitration was not deterred by and the constitutional privilege afforded to states’ rights. The public importance of regulatory laws should not be allowed to neuter arbitration either. The Court’s decisional conclusion has been that it is better to expand arbitration’s jurisdiction to include statutory rights than try to segregate, conceptually and practically, the domains of...
- The emphatic federal policy favoring arbitration also gave arbitration a greater adjudicatory presence in . The general rule was that the trustee in bankruptcy was “bound by the terms of an arbitration clause to the same extent as the debtor would be. . . .” To defeat the recourse to arbitration, the trustee was obligated to satisfy the heavy burden “of demonstrating that the Bankruptcy Code provisions, policy or legislative history [ ] conflict with [the] enforcement of an arbitration clause. . . .” In the Court’s view, the public policy contained in the Bankruptcy Code did not outweigh “the policies of the Arbitration Act”:
- The fact that the matter before the court is a core proceeding does not mean that arbitration is inappropriate. . . . The description of a matter as a core proceeding simply means that the bankruptcy court has the jurisdiction to make a full adjudication. However, merely because the court has the authority to render a decision does not mean it should do so. The discussion. . .regarding core and non-core proceedings is not read by this court as suggesting that core proceedings may not be subject to arbitration. Rather, it appears that the. . .court sought to distinguish between actions derived from the debtor, and therefore subject to the arbitration agreement, and bankruptcy actions in essence created by the Bankruptcy Code for the benefit ultimately of creditors of the estate, and therefore not encompassed by the arbitration agreement.
- According to the Second Circuit, bankruptcy courts do not have the discretion to override an arbitration agreement unless they find that the bankruptcy proceedings are based on provisions of the Bankruptcy Code that “ ” with the Arbitration Act or that the arbitration of the claim would “necessarily jeopardize” the objectives of the Bankruptcy Code.
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Chapter 9 Award Enforcement 65 results (showing 5 best matches)
- If we permit parties who lose in arbitration to freely relitigate their cases in court, arbitration will do nothing to reduce congestion in the judicial system; dispute resolution will be slower instead of faster; and reaching a final decision will cost more instead of less. This case is a good example of the poor loser problem and it provides us with an opportunity to discuss a potential solution.
- Disgruntled parties, therefore, are given an opportunity to express their opposition to the arbitrators’ determinations beyond complaining about would-be procedural irregularities under FAA § 10. Instructing the court of enforcement to undertake a full review of the substance of the award expresses distrust of the arbitrators and their ability to interpret and apply the law and to come to a decision. The provision for an appeal on the merits of the determination raises serious questions about the parties’ motivation for choosing arbitration. The addition of an opt-in provision alters a material part of the long-standing bargain for arbitration. It is difficult to conceive of contemporary arbitration as nothing more than a fact-finding procedure. Arbitrators are true adjudicators who achieve final and binding substantive results. By subordinating arbitration to the law and courts, opt-in provisions significantly compromise the ...arbitration. Like the misguided common law grounds,...
- The National Labor Relations Act § 301 governs labor arbitration because the courts have construed the Act to authorize them to create a federal labor law. This law seeks primarily to validate the labor arbitration process and to establish a positive relationship between the courts and the arbitral process by fostering the enforcement of labor awards. In the courts’ virtually unanimous view, labor arbitration instills a necessary discipline and cohesion into the unionized workplace. The landmark cases recognize the value of having a in the labor arbitration framework; the process of labor arbitration is almost completely self-regulating. Judicial scrutiny takes place at the end of the process; awards can be nullified only on a limited basis. Courts determine whether the labor arbitrator, in reaching the determinations in the award, followed the collective bargaining agreement (the negotiated law of the workplace) and federal labor laws.
- The majority’s position trivializes both the role of the court and the remedial integrity of arbitration. It also fosters about arbitration. It ignores the parties’ expectations as to their
- The dissent properly evaluated the majority’s distorted reasoning: “By remanding to the arbitration panel for clarification as to the underlying legal basis for liability, the majority . . . disregards the well-settled precedent establishing our severely limited review of arbitration awards.” Further, “in ‘wishing for more clarity,’ the majority’s decision overlooked our limited role in reviewing arbitration decisions. . . .” The dissent underscored how the majority opinion deviated from well-settled standards: “[M]ere ambiguity in the award itself is not a basis for denying confirmation, so long as the award can be interpreted as having a colorable factual or legal basis.” Also, “an ambiguous award may be confirmed, so long as any plausible reading of the award is legally sustainable.” In responding specifically to a point made by the majority, the dissent described the long-standing judicial practice in terms of arbitration: “Our goal, then, is not to discern the actual subjective...
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Chapter 1 Generalities 10 results (showing 5 best matches)
- of arbitration is its most prized attribute. It is the fourth factor that explains arbitration’s enormous appeal to business interests and global merchants. Global arbitration ‘hovers’ over national legal systems and their individual traditions and practices. It is not anchored in any one Nation-State. It is a that communicates its own values and establishes its own priorities. Global arbitration’s singular character and its exclusive commitment to commercial objectives explain its strong ‘business appeal’. It represents adjudication done by business people and lawyers for other business people and clients. The availability of arbitration is indispensable to transborder commercial ventures. It eliminates the pointless and arising from the assertion of national court jurisdiction, the choice of applicable law, and the enforcement of foreign judgments. Arbitration also eliminates the confounding disparities between legal systems. It serves as a ...providing an adjudicatory process...
- First and foremost, arbitration is a type of trial structure or framework by which to organize the adjudication of a disagreement. When parties consent to arbitrate disputes, they seek to avoid judicial litigation and to participate, and be bound by the result reached, in a private and informal hearing or set of hearings. Adjudication conducted through arbitration has both advantages and disadvantages when compared to the judicial trial. The ‘legally driven’ might say that the arbitral trial is a parody or caricature of the ‘real’ ( judicial) trial. Regardless of how its critics might disparage it, the arbitral trial has enormous practical value for ordinary citizens, especially those who are merchants and whose lives are not governed by a preoccupation with the law and legal methodology. In effect, arbitration adjusts the majestic yet unwieldly framework of the judicial trial and makes it work in the best interests of non-lawyers—the parties who are in conflict. In arbitration, the...
- are not ordinarily reached in arbitration. The goal of an arbitration is not to arrive at an ‘arrangement’ or an ‘accommodation’. In fact, one of the major contrasts between arbitration and judicial litigation is that arbitral proceedings generally go to completion ( they result in a full trial), whereas the vast majority of civil suits brought in court settle before trial or early into the hearing (usually before discovery is completed). This comparative difference can be explained in part by arbitration’s greater economy and the absence of a civil jury. Juries introduce substantial uncertainty into judicial proceedings and alter profoundly the structural dynamics and unfolding of the trial. From the outset of the proceedings, the lawyers constantly seek to bring the jurors over to their side through manipulation, aggressive argumentation, and—often—clever but ethically suspect deceit.
- ’ of arbitral proceedings can readily be counterproductive. It may lengthen the arbitration considerably and ask the arbitrators to act as if they were court judges—a task that they can effectively perform only if they have been or are members of the judiciary. At the very least, provision for a ‘judicialized’ arbitration should require parties to name retired judges as their arbitrators. Moreover, the attempt to control the arbitral trial and arbitrator decision-making may not result in greater adjudicatory integrity or fairness. Instead, the parties’ indecision and reticence may result in crippling the arbitral process. Freedom of contract can be misused or abused. Overly intense party control and the judicialization of the arbitration, in the end, can be profoundly unrealistic, confusing, and counterproductive. In a word, the parties have three choices for litigation: either arbitrate or litigate—or customize themselves, it seems, into an impracticable and unworkable adjudicatory...
- Generally, parties agree to arbitrate by including an arbitral clause in their contract. By and large,
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Title Page 3 results
Center Title 2 results
Index 231 results (showing 5 best matches)
- Arbitration institutions specializing in employment arbitrations, 264
- Consumer arbitration, seller-administered arbitration systems, 233
- Seller-administered arbitration systems, consumer arbitration, 233
- Advantages of arbitration, adhesiveness counterbalances, 241
- Anti-Arbitration Forces, this index
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Table of Cases 7 results (showing 5 best matches)
Outline 24 results (showing 5 best matches)
- Publication Date: April 21st, 2017
- ISBN: 9781628101522
- Subject: Dispute Resolution
- Series: Nutshells
- Type: Overviews
- Description: This Nutshell on arbitration addresses freedom of contract, federal preemption, and universal arbitrability. It conveys a thorough sense of the relevant case law and applicable rules. It describes the unique features of the various forms of arbitration and covers the current debate about arbitration.