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Sunday, June 4, 2017

Fate of Obama-Era Arbitration Rules Under Current Republican President and Congress

Perry Cooper, of Bloomberg News, writes  “A half dozen Obama-era rules to limit mandatory arbitration have met a variety of fates in the four months since Donald Trump became president.”

Arbitration Update: CFPB Rule Uncertain, Mixed Fates for Others goes on to say:


  1. "The Consumer Financial Protection Bureau rule, which covers financial products, hasn’t been finalized yet and is in a perilous position."
  2. "Congress reversed the federal contractor rule under the Congressional Review Act in March."
  3. Anti-arbitration rules covering nursing homes and communication contracts have been put on hold by their originating agencies, while rules that apply to for-profit colleges and financial advisers "appear to be in the clear, at least for now."


Tuesday, May 16, 2017

Supreme Court: Federal Arbitration Law Preempts State Law on Nursing Home Power of Attorney

By a 7-1 vote, the U.S. Supreme Court reversed a Kentucky Supreme Court decision refusing to enforce nursing-home arbitration agreements entered into by agents with power of attorney on behalf of their principals.

The Kentucky Supreme Court "fails to put arbitration agreements on an equal plane with other contracts," according to the opinion, authored by Justice Elana Kagan. "By requiring an explicit statement before an agent can relinquish her principal’s right to go to court and receive a jury trial, the court did exactly what this Court has barred: adopt a legal rule hinging on the primary characteristic of an arbitration agreement."

Commentary by University of North Carolina law professor Mark Weidemaier

The Hill coverage

SCOTUS blog coverage

Thursday, March 30, 2017

The Centrist Case Against Current (Conservative) Arbitration Law

The Centrist Case Against Current (Conservative) Arbitration Law is my article just published in the Florida Law Review

In The Politics of Arbitration Law and Centrist Proposals for Reform, published in the Harvard Journal on Legislation, I explained how issues surrounding consumer and other adhesive arbitration agreements became divisive along predictable political lines (progressives vs. conservatives) and proposed an intermediate (or centrist) position to resolve those issues. However, The Politics of Arbitration Law did not argue the case for my proposals. It left those arguments for this Article, which makes the case against current (conservative) arbitration law, and a third article, which will make the case against progressive proposals to reform arbitration law. In other words, this Article stands out from the many other articles critiquing current arbitration law because this Article’s critique comes from a centrist, rather than progressive, perspective. For that reason, this Article’s critique may be more likely than progressive critiques to gain traction with lawmakers. 

I welcome comments directed to ware@ku.edu

Wednesday, March 1, 2017

NY Times Criticizes Confidentiality of Employment Arbitration

Today's New York Times refers to "the murky world of corporate arbitration, in which serious charges of misconduct are often settled behind closed doors." The case accuses parent of Kay Jewelers "of discriminating against women by denying them equal pay and promotional opportunities. The accusations of sexual harassment are included in statements employees made about pay and promotion disparities, and the accusers have sought to link the accusations to their wages."

University of Kansas Law Professor and arbitration expert Chris Drahozal gave me permission to add his point that "the arbitration rules in the Kay Jewelers arbitration agreement (National Arbitration and Mediation) are unusual in the U.S. In imposing a confidentiality obligation on the parties. By comparison, the AAA and JAMS rules impose a confidentiality obligation only on the arbitrator and the administrator. Under the AAA and JAMS rules, either party remains free to release any information about the arbitration (in the absence of a confidentiality order by the arbitrators) without consent of the other party."

Wednesday, February 8, 2017

Arbitration Rules Changed by International Chamber of Commerce

The Revised Rules of the International Chamber of Commerce "will apply from 1 March 2017. They provide that expedited procedure rules will automatically apply to all arbitrations with amounts in dispute below US$2 million and to cases involving higher amounts on an opt-in basis." The ICC explains "Under the Expedited Procedure Rules, the ICC Court will normally appoint a sole arbitrator, irrespective of any contrary term of the arbitration agreement. Awards must be made in six months from the case management conference, with extensions granted only in limited and justified circumstances."

Friday, January 13, 2017

Supreme Court to Decide Enforceability of Class Waivers in Labor Arbitration

Federal appeals courts have split on whether the NLRB rightly holds arbitration agreements illegal under federal labor law if they contain class action waivers.

The Supreme Court today agreed to resolve the issue.

Monday, January 2, 2017

Investment Arbitration Against Argentina

Award in bondholders' investment arbitration against Argentina. ICSID (International Centre for Settlement of Investment Disputes) is part of the World Bank