Arbitration Agreements in Bankruptcy

I spoke on Arbitration Agreements in Bankruptcy at the Missouri Bar Association’s Annual Bankruptcy Institute in Springfield, MO, March 9, 2018,. The topic of arbitration agreements in bankruptcy is addressed in my co-authored 2017 book, Principles of Arbitration, and in a 2018 case by the United States Court of Appeals for the Second Circuit in New York City, Anderson v. Credit One Bank.

My presentation on arbitration agreements in bankruptcy is available on  Ware’s SlideShare.

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

Bankruptcy Law's Treatment of Creditors' Jury-Trial and Arbitration Rights

Bankruptcy Law's Treatment of Creditors' Jury-Trial and Arbitration Rights

This article starts with an apparent anomaly: Bankruptcy law treats the constitutional jury right with less deference than the, merely statutory, right to arbitrate.

This article explains that this apparent anomaly is actually the plausible result of a limitation within the Seventh Amendment jury right, its applicability only to claims at law but not claims in equity. The right to arbitrate is not similarly limited. So creditors seeking to arbitrate claims by and against debtors in bankruptcy are not defeated by longstanding holdings placing such claims on the equity side of the law/equity line. In contrast, creditors seeking jury trials of claims by and against debtors in bankruptcy are defeated by such holdings.