NY Times Keeps Criticizing Adhesive Arbitration Agreements

Today's criticism goes beyond yesterday's criticism in arguing that the process of arbitration is biased in favor of businesses and against individual consumers and employees.

The Times asserts that arbitration’s “rules tend to favor businesses, and judges and juries have been replaced by arbitrators who commonly consider the companies their clients.” That’s quite a strong allegation and one that I think most arbitrators would dispute. Arbitrators are supposed to be neutral and a ground for vacating an arbitration award is evident partiality of the arbitrator.

Good commentary on the NY Times articles by North Carolina Law Professor Mark Weidemaier

American Bar Ass'n Arbitration Competition Open for Registration

The ABA Law Student Division Arbitration Competition promotes greater knowledge in arbitration by simulating a realistic arbitration hearing. Participants prepare and present an arbitration case, including opening statements, witness examinations, exhibit introductions, evidentiary presentations, and summations. Experience what it is to be a professional, competent, and ethical advocate.

To learn more about the competition

New Rules for Consumer Arbitration

The American Arbitration Association announces its new Consumer Arbitration Rules for cases filed on or after September 1, 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.

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. 

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

When Parties Agree, Should the Arbitrator Do What the Parties Want?

Parties whose dispute is in arbitration often disagree on the process the arbitrator should follow to resolve the dispute.  But suppose the parties agree.  Does the arbitrator have to use the process the parties want? 

This important topic is highlighted by Barbara Reeves Neal a JAMS Arbitrator.  She rightly points that two or more of these principles can come into conflict:

1. Arbitration is a delegated and defined power to make certain types of decisions in certain prescribed ways.
2. The arbitrator’s powers derive from parties’ contract; the arbitrator is not entitled to do anything unauthorized by parties.
3. The arbitrator has an obligation to the process of arbitration itself and must preserve the integrity and fairness of the process, while advancing the fair and efficient resolution of matters submitted for decision.
4. It is the duty of the arbitrator to ensure a timely resolution and that the counsel and the parties understand the time and cost implications of potential time delays or adjournment they seek.
5. The arbitrator should set meaningful limitations in order to preserve the efficiency and integrity of the arbitration process.

In fact, it is likely that the first two principles (party autonomy) will occasionally conflict with the last three principles which relate to the arbitrator's desire to have a good arbitration process ("integrity" "fairness" "timely" "efficiency").

If the parties agree that they want an arbitration with more discovery than the arbitrator thinks wise, or more continuances than the arbitrator thinks wise, should the arbitrator grant the parties' joint requests?  Generally, yes, in my view.   Arbitrator Barbara Reeves Neal's views are here.

Arbitration for Baseball Star Alex Rodriquez

This article shows the money and intensity in the A-Rod arbitration, with some New York landmarks for color, e.g., "after Mr. Reyes had been served the subpoena at the Times Square toy store, he was back on Park Avenue to testify in the arbitration."  Read more