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Thursday, January 30, 2014

Arbitration Agreement Incorporated by Reference

Typically good analysis by Liz Kramer of recent cases in which the agreement did not directly provide for arbitration but may have incorporated an arbitration agreement.

Tuesday, January 28, 2014

Manifest Disregard of Law Still a Ground for Vacating Arbitration Awards?

Since the Supreme Court's 2008 Hall Street decision courts have been divided on whether "manifest disregard of the law" is still a ground for vacating arbitration award.  This recent sixth circuit case leaves us still wondering. 

Sunday, January 26, 2014

Will Supreme Court hear Case on Delaware's State-Sponsored Confidential Arbitration?

The Delaware Court of Chancery has asked the U.S. Supreme Court to overturn a Third Circuit decision upholding a lower court ruling that Delaware’s state-sponsored arbitration program violated the First Amendment.  Those words, "state-sponsored", are key.  This "arbitration" was not arbitration in the usual sense of a private-sector alternative to the public-sector courts.

Monday, January 20, 2014

Money, Politics and Judicial Decisions: A Case Study of Arbitration Law in Alabama

This article presents the results of a study of 106 decisions by the Supreme Court of Alabama from January 18, 1995 through July 9, 1999. The decisions are in the area of arbitration law and reveal the remarkably close correlation between a justice's votes on arbitration cases and his or her primary source or campaign funds. Justices whose election campaigns are funded by plaintiffs' lawyers oppose arbitration, whereas justices whose campaigns are funded by business favor arbitration. The correlation holds not just with regard to ideologically-charged doctrines, like unconscionability, but also with seemingly bland questions of contract formation, interpretation and waiver.

Journal of Law & Politics, Vol. 15, No. 645,

Wednesday, January 15, 2014

Arbitration and Ombuds of Consumer Financial and Securities Disputes

This interesting paper by Shahla F. Ali of the University of Hong Kong Faculty of Law contains a useful global perspective on US arbitration of consumer financial and securities claims and one alternative to it, an ombudsman.  A big question about ombuds is what power they have over the parties and how it compares to the arbitrator’s power to issue a legally-binding ruling.

Monday, January 13, 2014

Oxford Health Plans v. Sutter

The Supreme Court case of Oxford Health Plans v. Sutter is well analyzed by Brian Farkas of Goetz Fitzpatrick LLP, who rightly says: "Two developing areas of law collided in a single case this term, as the Supreme Court considered both the finality of arbitral awards and the ability to form class actions in the context of an arbitration agreement. The Supreme Court in Oxford Health Plans LLC v. Sutter reaffirmed the principle that an arbitrator's decisions are largely immune from judicial review."

I know Brian Farkas to be very capable because I worked with him when he was Editor-in-Chief of the Cardozo Journal of Conflict Resolution and I published an article in that journal.

Is Adjudication a Public Good?: 'Overcrowded Courts' and the Private-Sector Alternative of Arbitration

This article was published in  Cardozo Journal of Conflict Resolution, Vol. 14, 2013
 It asks which disputing parties deserve subsidized adjudication which should have to pay market rates for it? Our society’s failure to confront this important question allows all disputing parties to pursue the subsidy for themselves. The result is that parties who do not deserve the subsidy — parties who should be paying market rates for adjudication — are consuming public resources that would be better spent on parties who do deserve the subsidy.

One way to end the public subsidy for cases that do not deserve it is for courts to charge the parties to such a case a fee high enough to reimburse the court for its costs of adjudicating the case. Such “user fees” have been proposed by several thoughtful commentators. This article assesses those proposals and suggests that user fees would make litigation look more like arbitration. This article concludes by considering the possibility that the public-sector court system and private arbitration organizations could compete in the market for unsubsidized adjudication and in the market for subsidized adjudication. In short, this article places discussions of overcrowded courts and court user fees in the context of a society — our society — with a strong private-sector alternative to our courts.

Sunday, January 12, 2014

Arbitration Makes the Headlines (When A-Rod's Involved)

The Headline in Today's New York Times Blares "Arbitrator’s Ruling Banishes the Yankees’ Alex Rodriguez for a Season." 

Usually, arbitration is relegated to a dark corner of the business section if it gets any press at all, but (like him or not) A-Rod really has had a great career so banning him for a year is big.  The Times adds "In a statement through his spokesman, Rodriguez criticized the ruling and vowed to challenge it in court.... Legal experts say it is unusual for a judge to second-guess an arbitrator in a labor dispute." 

California's (Lack of?) International Commercial Arbitration

A new paper by Giorgio Sassine, Stockholm University, is entitled “California Must Become More Favorable to International Commercial Arbitration: An Article on Why it Has Not, How it Can Change so that it is, and Why it Should.” 
It argues California should allow foreign lawyers to represent clients in arbitration in California and its failure to do so leads foreign lawyers to draft arbitration clauses that steer arbitration away from California and to places such as New York, Paris, Geneva, or Singapore.

Saturday, January 11, 2014

International Arbitration Culture and Global Governance

Queens University Law Professor Joshua Karton wrote a book entitled The Culture of International Arbitration and The Evolution of Contract Law.    His recent paper International Arbitration Culture and Global Governance includes these interesting points:

"For International Commercial Arbitration to constitute global governance, as opposed to merely disconnected resolutions of individual cross-border disputes according to national laws, there are at least two prerequisites. First, legal rules must be formulated at the global level and apply regardless of the nationality and public or private status of the parties. Second, there must be a functional consistency in arbitral decision-making; a consistent adjudicative approach, such that 'like cases are treated alike,' is a hallmark of the rule of law. In the radically decentralized ICA system, where there is no central administrative body, no appellate hierarchy, and no common sets of procedural or substantive rules, consistency appears to be a tall order. Can there be global governance without a global governor?"

Trial Lawyers vs. Chamber of Commerce: Battle over Arbitration

Enforcement of arbitration clauses, especially in the context of form contracts presented by businesses to consumers and employees, has long been a battle between trial lawyers and business.  

Here is a big recent document by the trial lawyers' American Association for Justice.    Here is the US Chamber of Commerce's side of the story, from its Institute for Legal Reform.

I tend to agree with the Chamber as evident in this congressional testimony (video), law review article and policy analysis for the Cato Institute.

Thursday, January 9, 2014

Prediction CFPB Will Ban or Limit Arbitration Class Waivers

Last month, the Consumer Financial Protection Bureau released the preliminary results of its study on arbitration in consumer financial transactions such as credit cards, checking accounts and payday loans.  James McGuire and Kay Fitz-Patrick at Morrison & Foerster LLP say "We can expect that, after completing its study, the CFPB will issue a rulemaking that either bans or limits the use of arbitration clauses with class waivers in connection with financial products."

The MoFo lawyers' prediction is backed by some good points under the heading “POLITICAL CLIMATE”:

·         “there has been increased criticism of the inclusion of arbitration clauses, especially those that contain class waivers, in consumer contracts since the Supreme Court has twice ‘rejected the argument that class arbitration was necessary to prosecute claims that might otherwise slip through the legal system’ – in AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011) and in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013).”

·         “The hostility towards the decisions is further evidenced by” the Senate Judiciary hearing on December 17, 2013. Senator Al Franken presided over the hearing quite assertively.

·         Sen. Franken reintroduced legislation seeking to prevent enforcement of pre-dispute arbitration agreements in contracts of adhesion.


Wednesday, January 8, 2014

Class Arbitration and Class Waivers in International and Investment Arbitration

University of Missouri Law Professor Stacy Strong does a lot of good writing on international arbitration and has been especially attentive to class actions and other mass adjudication procedures.  Her book, "Class, Mass, and Collective Arbitration in National and International Law", is here.

Her current paper, "Limits of Autonomy in International Investment Arbitration: Are Contractual Waivers of Mass Procedures Enforceable?" is here.  It discusses such mass adjudication procedures in investment arbitration and contractual waivers of such procedures.

Monday, January 6, 2014

Increasing Legalism in International Commercial Arbitration

A new paper by University of Missouri Law Professor Stacy Strong discusses the causes of increasing legalism in international commercial arbitration and the attendant increase in the time and money costs of the process.  Possible causes of increased legalism include increased use of U.S. litigation tactics, changes to the nature of the underlying transactions, and changes in arbitration law  relating to non-signatories, regulatory concerns and choice of law. 

Thursday, January 2, 2014

Similarities between Arbitration and Bankruptcy Litigation

The litigation process in bankruptcy courts differs from the litigation process under the Federal Rules of Civil Procedure. And the bankruptcy litigation process differs from the Federal Rules in many of the same ways that the arbitration process tends to differ from the Federal Rules. This Article explores these similarities between the procedures of bankruptcy litigation and arbitration and contrasts them with the more elaborate procedures of ordinary civil litigation under the Federal Rules.

Nevada Law Review, Vol. 11, p. 436