The author examines and summarizes recent cases, acts and potential issues as of November 2024. (Reprinted with permission ©2024. All rights reserved. Further duplication without permission is prohibited.) *The views expressed are those of the author(s) and do not necessarily reflect the views of CCA or any other organization. …
Articles by Fellows
Application of Mandatory Law in U.S. Arbitration
In this article, the authors examine claims under mandatory law and describe how they are treated in jurisdictions other than where they arise. They then analyze the effect of choice-of-law provisions on mandatory law. Finally, the authors explore how mandatory law may be treated by arbitrators. (Reprinted with permission from the July 2024 issue of the Dispute Resolution Journal ©2024. All rights reserved. Further duplication without permission is prohibited.) *The views …
Exploring California’s Reputation: From Wild West to Arbitration Destination
California is well positioned as an arbitration venue, particularly for U.S. to Asia disputes, due to its geography, leading universities, experienced arbitrators, and capable judiciary. (Reprinted with permission from the May 1, 2024 issue of the Daily Journal ©2024 Daily Journal Corporation. All rights reserved. Further duplication without permission is prohibited.) *The views expressed are those of the author and do not necessarily reflect the views of CCA or any other …
Sanctions in Commercial Arbitration
As a matter of practice, arbitrators rarely impose sanctions, although sometimes the need arises. This article discusses the tools arbitrators can use to respond to sanctionable behavior in arbitration. (Reprinted with permission from the December 20, 2022 issue of The New York Law Journal © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.) *The views expressed are those of the author and do not necessarily reflect …
2022 Virtual Arbitration Report to CCA
In connection with a presentation by a panel of CCA Fellows at the Spring Meeting of the ABA Dispute Resolution Section, the College surveyed its membership seeking the individual and collective experiences and opinions of the Fellows regarding arbitrations conducted in whole or in part through remote video technology (‘virtual arbitrations’). This is a preliminary summary of the results of that survey. (April 2022) *The views expressed are those of the author and do not necessarily …
Improving the Arbitration Process Using a CCA Process Facilitator
Many members of the College of Commercial Arbitrators are successful mediators as well as arbitrators. As mediators they can function concurrently as Process Facilitators (“PFs”) during an arbitration to help the parties prepare for an efficient arbitration. As PFs, they are not participating in a Med/Arb process where the same person is both a mediator and an arbitrator. As separately hired mediators, the PFs can talk with parties confidentially, and help the parties use efficient collaborative …
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 …
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. …