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Pathological Clause of 2021: Winner
Inspired by Gary Born’s lecture on Pathological Arbitration Clauses, as well as the discussion in his International Commercial Arbitration (3rd ed. 2021), I recently challenged CCA Fellows to nominate troublesome clauses that came to their attention this past year. Before announcing the winner, though, a word or two on the criteria for the challenge. Introduction As described in Frédéric Eisemann, La Clause D’arbitrage Pathologique [in COMMERCIAL ARBITRATION: ESSAYS …
The Floodgates Open: Managing Mass Arbitrations in the Wake of Epic Systems and Lamps Plus
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A New ADR Development: Mass Arbitrations
Many employees and consumers agree to arbitrate any dispute they may have with their employer or vendor. These agreements often result from "mandatory" arbitration clauses which simply means that the employee or consumer had no choice but to agree if she wanted to take the job or buy the product. (Published by Reuters, December 22, 2021) *The views expressed are those of the author and do not necessarily reflect the views of CCA or any other organization. …
Can California Protect Employees from Entering into Mandatory Pre-Dispute Arbitration Agreements and Avoid Federal Preemption?
In California, legislative efforts to prevent employers from requiring employees to sign pre-dispute arbitration clauses, removing the right to a court or jury trial, have traveled a long and rocky road. The biggest rock — really a boulder — has been the doctrine of federal preemption. Does the Federal Arbitration Act (FAA) preempt California’s most recent attempt to prevent employers from requiring employees to enter into mandatory pre-dispute arbitration agreements? (Published in California …
Arbitration’s Advantages Make It A Superior Solution
The benefits of commercial arbitration are generally known and widely accepted. Arbitration disputes on average are concluded far more quickly and efficiently than court litigation. (Published by Law360, December 2021) [Reprinted with permission from Law360.] *The views expressed are those of the author and do not necessarily reflect the views of CCA or any other organization. …
Ninth Circuit to Arbitrator: You can’t do that, even here in arbitration nation.
At one time, many courts were hostile to arbitration. Arbitrators didn’t need to be lawyers, and they often didn’t approach things the way a court would. To those used to the way courts decide disputes, arbitrators’ way of deciding disputes could seem, well, arbitrary. And so, many courts were hostile to arbitration. Yet, many businesses felt they needed a quicker and less expensive way to resolve disputes and move on. Permitting arbitration and limiting review So, Congress passed …
Commercial Arbitrations: Private, But Not Always Secret
An advantage of commercial arbitration is that it is private. The dispute is resolved in a private proceeding. Unlike court, the public is not allowed in. Arbitrators must keep secrets Under the rules of most arbitral organizations and under ethics rules for arbitrators, the arbitrator must keep things confidential. E.g., AAA Comm’l Rule 25 (“The arbitrator and the AAA shall maintain the privacy of the hearings unless the law provides to the contrary.”); Code of Ethics for …
“The Value of Peach Orchards” The Perils of Arbitrator Subject-Matter Expertise
The ability to select and appear before arbitrators with factual subject-matter expertise is often proclaimed as a great advantage of arbitration over litigation. However, expert/arbitrators can also present perils to natural justice and to arbitral award enforcement. (Published in ZDAR, July 2018) *The views expressed are those of the author and do not necessarily reflect the views of CCA or any other organization. …
CCA 2021 Annual Meeting – Session Recordings
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