My New Arbitration Book

Hot off the presses, a thoroughly updated Arbitration casebook by Stephen Ware and Alan Scott Rau:

Available from Amazon, this book discusses arbitration law and practice clearly and reliably, with engaging context ranging from partisan political battles to a Justin Bieber tweet. Balanced and comprehensive, the book covers major types of arbitration in the United States―commercial (including securities and trade associations), labor, employment, consumer, insurance, medical, and religious―as well as important types of international arbitration, such as commercial, maritime, investment, and sports. A carefully constructed teaching tool, Arbitration intersperses contemporary disputes―involving Uber’s app, Donald Trump’s confidentiality agreement, Jay-Z’s impact on arbitrator diversity, and the relationship between gender and biology―among:

• All the major Supreme Court cases from 1953 through 2019;
• Current case law on evolving topics, such as delegation clauses, contracts formed by clicking links on cell phones, and substitutes for the class actions limited by Concepcion;
• The full text of the Federal Arbitration Act, New York Convention, and Panama Convention;
• Chapters divided into short, coherent sections suitable for a single class session; and
• “Questions to Review and Synthesize” after the reading for each class session.

American Arbitration Association Contrasted with Trade Association Arbitration

Commercial arbitration's different types -- such as the contrast between the AAA and trade associations -- are discussed in my recent article: Stephen J. Ware, Private Ordering and Commercial Arbitration: Lasting Lessons from Mentschikoff, 2019 J. Disp. Resol. (2019).

It revisits the classic work of Soia Mentschikoff who detailed a
thoroughgoing form of private ordering in trade association arbitration that
privatizes all three of:

(1) lawmaking (through arbitrators applying industry trade rules rather than
governmental law, and through the precedential effect of arbitrators’ reasoned
awards);
(2) adjudication (through arbitration procedures quite different from courts’
rules of procedure and evidence); and
(3) enforcement of the adjudicator’s decision (through private sanctions
culminating in expulsion from the association).

By contrast, she shows that the general commercial arbitration typical of the
AAA often includes only the second of these three forms of privatization.

A summary from Beth Graham at DisputingBlog.

California Legislature Opens Door to Out of State Lawyers in Arbitration

California Governor Jerry Brown signed into law Senate Bill 766, which allows out of state lawyers to represent parties in commercial arbitrations located in California. The previous restriction on out of state lawyers stemmed from the California Supreme Court decision in Birbrower, Montalbano, Condo & Frank v. Superior Court of Santa Clara County, 17 Cal. 4th 119 (1998). As I pointed out in a past post, the extra burden imposed by that decision may have led some parties to draft arbitration clauses to steer arbitration away from California. 

Dixon Dern, a California attorney, arbitrator, and mediator, offers a more detailed discussion of the bill and its requirements.