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Arbitration
Article on A Critique of the American Arbitration Association’s Efforts to Facilitate Arbitration of Internal Trust Disputes
August 2, 2018
E. Gary Spitko published an Article entitled, A Critique of the American Arbitration Association's Efforts to Facilitate...
August 2, 2018
E. Gary Spitko published an Article entitled, A Critique of the American Arbitration Association's Efforts to Facilitate...
Moneyball for Arbitrators
July 31, 2018
In Moneyball, Lewis quips that “baseball scouting was at roughly the same stage of development in the twenty-first century as professional medicine had been in the eighteenth.” The same could be said of modern international arbitrator selection. Much like the “fraternity of old scouts” who use their gut instincts to identify future baseball players, parties and attorneys select international arbitrators based on intuition, and supplement that intuition with ad hoc, person-to-person research,...
July 31, 2018
In Moneyball, Lewis quips that “baseball scouting was at roughly the same stage of development in the twenty-first century as professional medicine had been in the eighteenth.” The same could be said of modern international arbitrator selection. Much like the “fraternity of old scouts” who use their gut instincts to identify future baseball players, parties and attorneys select international arbitrators based on intuition, and supplement that intuition with ad hoc, person-to-person research,...
Efficient Arbitration – Part 2: Launching an Efficient Arbitration
July 30, 2018
Kicking off our series on efficiency in arbitration, our first article, Efficient Arbitration – Part 1: Metrics sets out our idea of an efficient arbitration: Achieving the best possible outcome with the least amount of resources. A balancing act. A range of tools are available to focus the spending of resources. Resources should be invested, not wasted. The selection of the right tools to do so often falls to counsel. It is crucial that counsel is aware of the available tools, stays...
July 30, 2018
Kicking off our series on efficiency in arbitration, our first article, Efficient Arbitration – Part 1: Metrics sets out our idea of an efficient arbitration: Achieving the best possible outcome with the least amount of resources. A balancing act. A range of tools are available to focus the spending of resources. Resources should be invested, not wasted. The selection of the right tools to do so often falls to counsel. It is crucial that counsel is aware of the available tools, stays...
Supreme Court Grants Cert Addressing Delegation of Arbitrability
July 27, 2018
Upon reconvening in October 2018, the Supreme Court will take up an interesting question involving the familiar rules of First Options v. Kaplan: Who is to decide whether a claim is subject to arbitration — a court or the arbitrator? The peculiar facts giving rise to that concern in Archer and White Sales Inc. v. Henry Schein Inc. broaden, rather than limit, the case’s interest. Archer, a distributor and seller of dental equipment, brought a suit against Schein, a manufacturer, alleging...
July 27, 2018
Upon reconvening in October 2018, the Supreme Court will take up an interesting question involving the familiar rules of First Options v. Kaplan: Who is to decide whether a claim is subject to arbitration — a court or the arbitrator? The peculiar facts giving rise to that concern in Archer and White Sales Inc. v. Henry Schein Inc. broaden, rather than limit, the case’s interest. Archer, a distributor and seller of dental equipment, brought a suit against Schein, a manufacturer, alleging...
Reconciling Fault Lines in Arbitration and Redefining Arbitration Through the Broader Lens of Procedure
July 26, 2018
Imre S. Szalai, Judge John D. Wessel Distinguished Professor of Social Justice at Loyola University New Orleans College of Law, has authored “Reconciling Fault Lines in Arbitration and Redefining Arbitration Through the Broader Lens of Procedure,” 18 Nev. L.J. 511 (2018); Loyola University New Orleans College of Law Research Paper No. 2018-07. In his publication, Professor Szalai examines what he describes as the United States Supreme Court’s often inconsistent treatment of arbitration...
July 26, 2018
Imre S. Szalai, Judge John D. Wessel Distinguished Professor of Social Justice at Loyola University New Orleans College of Law, has authored “Reconciling Fault Lines in Arbitration and Redefining Arbitration Through the Broader Lens of Procedure,” 18 Nev. L.J. 511 (2018); Loyola University New Orleans College of Law Research Paper No. 2018-07. In his publication, Professor Szalai examines what he describes as the United States Supreme Court’s often inconsistent treatment of arbitration...
An Empirical Study of Dispute Resolution Clauses in International Supply Contracts
July 25, 2018
International transactions present unique legal risks. When a contract touches several different nations, a party may not know where it will be called upon to defend a lawsuit or, alternatively, which nation’s law will be applied to resolve that dispute. To mitigate these risks, parties will often write dispute resolution provisions into their contracts. Arbitration clauses and forum selection clauses help to reduce uncertainty relating to forum. Choice-of-law clauses help to reduce uncertainty...
July 25, 2018
International transactions present unique legal risks. When a contract touches several different nations, a party may not know where it will be called upon to defend a lawsuit or, alternatively, which nation’s law will be applied to resolve that dispute. To mitigate these risks, parties will often write dispute resolution provisions into their contracts. Arbitration clauses and forum selection clauses help to reduce uncertainty relating to forum. Choice-of-law clauses help to reduce uncertainty...
No Signature, No Arbitration
July 25, 2018
Huckaba signed an arbitration agreement with her employer, Ref-Chem – but Ref-Chem did not sign the agreement. The agreement had signature blocks for both parties, referred to the “signature affixed hereto” and the legal effect of “signing this agreement,” and also said that it “may not be changed, except in writing and signed by all parties.” The Fifth Circuit concluded that the agreement was not enforceable, focusing on the distinction between acceptance of the offer, and the separate...
July 25, 2018
Huckaba signed an arbitration agreement with her employer, Ref-Chem – but Ref-Chem did not sign the agreement. The agreement had signature blocks for both parties, referred to the “signature affixed hereto” and the legal effect of “signing this agreement,” and also said that it “may not be changed, except in writing and signed by all parties.” The Fifth Circuit concluded that the agreement was not enforceable, focusing on the distinction between acceptance of the offer, and the separate...
Federal Circuits Split On Whether Uber Can Enforce Arbitration Clause
July 24, 2018
The lesson here is two-fold. First, there is no clear standard for when terms on a website (or on a receipt, or in a box) are sufficiently conspicuous, so judges are left to their own devices (pun intended) to answer that question. Second, unless an on-line provider wants judges — who are likely untrained in the psychology of consumer design related to five inch screens (and may not even have any apps) — to keep on getting to whatever result they please, the only solution is to require...
July 24, 2018
The lesson here is two-fold. First, there is no clear standard for when terms on a website (or on a receipt, or in a box) are sufficiently conspicuous, so judges are left to their own devices (pun intended) to answer that question. Second, unless an on-line provider wants judges — who are likely untrained in the psychology of consumer design related to five inch screens (and may not even have any apps) — to keep on getting to whatever result they please, the only solution is to require...
Ware on the Federal Arbitration Act, Preemption, and Consumer and Employee Arbitration Agreements
July 23, 2018
Stephen J. Ware (University of Kansas - School of Law) has posted A Short Defense of Southland, Casarotto, and Other Long-Controversial Arbitration Decisions (Loyola Consumer Law Review, Vol. 30, No. 3, 2018) on SSRN. Here is the abstract: Scalding criticism of Supreme Court arbitration decisions appeared in the 1990’s and is now widespread. Over twenty years ago, the Supreme Court held that pre-dispute arbitration clauses in adhesion contracts are generally enforceable. Thoughtful scholars...
July 23, 2018
Stephen J. Ware (University of Kansas - School of Law) has posted A Short Defense of Southland, Casarotto, and Other Long-Controversial Arbitration Decisions (Loyola Consumer Law Review, Vol. 30, No. 3, 2018) on SSRN. Here is the abstract: Scalding criticism of Supreme Court arbitration decisions appeared in the 1990’s and is now widespread. Over twenty years ago, the Supreme Court held that pre-dispute arbitration clauses in adhesion contracts are generally enforceable. Thoughtful scholars...
Arbitration Clause Enforceability Seems Like a Pretty Safe Bet These Days
July 23, 2018
There is very little you can bet on in life but it seems like the continued prevalence of arbitration clauses is one of them. We just had a Supreme Court ruling confirming that, and a recent case out of Nebraska, Heineman v. The Evangelical Lutheran Good Samaritan Society, No. S-17-983, continues in the same vein. As far as the public policy concern went, the lower court had relied on a federal regulation prohibiting arbitration clauses as a requirement for admission to long-term...
July 23, 2018
There is very little you can bet on in life but it seems like the continued prevalence of arbitration clauses is one of them. We just had a Supreme Court ruling confirming that, and a recent case out of Nebraska, Heineman v. The Evangelical Lutheran Good Samaritan Society, No. S-17-983, continues in the same vein. As far as the public policy concern went, the lower court had relied on a federal regulation prohibiting arbitration clauses as a requirement for admission to long-term...
