Arbitration

Question 1

Arbitration Institutions

Answer 1

> function as support services for arbitrators
- connects them with potential clients
- gives space to hold arbitrators
- rules for conducting arbitrations
- billing services for collecting their fees

• AAA, JAMS, and CPR after general arbitration services

Question 2

Arbitration Process

Answer 2

> most arbitrations involve a hearing
- witness are sworn, examined, cross-examined, and exhibits are entered into evidence
after all evidence and briefs are in, arbitrator issues a decision
arbitral award is final and binding and enforced by the courts cannot be appealed. very few grounds for annulment

Question 3

Reasons to choose arbitration over litigation

Answer 3

> relative speed and economy
privacy and avoidance of precedent
choice of expect decisionmaker
informality, arbitral flexibility, finality

Question 4

How to dispute enforcement of arbitration clauses (2 FAA)

Answer 4

Unconscionability, fraud, mistake, lack of capacity, duress, and severability

Question 5

Types of Arbitration

Answer 5

(1) labor management (between employers and unions)
(2) commercial arbitration
(3) international arbitration

others: administrative/regulatory, family, public sector

Question 6

Labor Management Arbitration

Answer 6

> between employers and unions
governed by 301 of National Labor Relations Act (NLRA)
collective binding agreement

Question 7

Commercial Arbitration

Answer 7

between:
(1) 2 or more business entities
(2) businesses and consumers or
(3) employers and non-unionized employees
- construction, leases

all of these are governed by the Federal Arbitration Act (FAA) and related state arbitration laws

Question 8

Binding Arbitration

Answer 8

> arbitration process
parties agree through contracts/agreements to submit their dispute to a neutral party whom the have selected to make a decision
- used in industrial labor relations and commercial and consumer disputes
- parties customize the proceeding

Question 9

International arbitration

Answer 9

governed primarily by 1958 UN Convention of the recognition and enforcement of foreign arbitrational awards as adopted by Congress in 2018 and the new york convention and the faa

Question 10

Administrative/Regulatory Arbitration is governed by…

Answer 10

federal statutes

Question 11

Family and Public Sector arbitration is covered by…

Answer 11

state law

Question 12

Arbitrator

Answer 12

• parties can select their decision maker based on subject matter expertise
• not credentialed by state or national boards
• like judges, they are granted immunity from civil liability when they act in their adjudicative capacity

Question 13

Separability Doctrine

Answer 13

the doctrine calls for the arbitration provision in a larger contract to be treated as a presumptively valid contract that is separate from the larger contract.

Question 14

Section 3 and 4 of the FAA

Answer 14

requires the court to enforce an agreement to arbitrate when the court is satisfied that an agreement to arbitrate has been made

Question 15

Most fraud cases are direct at the

Answer 15

entire contract

Question 16

Unconscionability

Answer 16

> the most common defense
the the provision is substantively and procedurally too one sided or unfair to be enforced by a court of law as a matter of policy; must be bother substantively and procedurally unconscionable before striking it down

Question 17

Procedural unconscionability

Answer 17

establishing surprise, such a placement of the arbitration provision in an obscure part of a larger contract between the parties

Question 18

Substantive Unconscionability

Answer 18

established by showing an arbitration provision is too one sided, overly harsh, shocks the conscience, or sometimes frustrates the reasonable expectations of the parties

Question 19

Sobel

Answer 19

• the award as it is should be enforced
• you cannot force the arbitrators to give reasons for their award

Question 20

Section 10(a)(1)

Answer 20

provides for an award to be vacated where the award is procured by corruption, fraud, or undue means. The standard is high

Question 21

Section 10(a)(2)

Answer 21

provides that an arbitral award may be vacated where there was evident partiality or corruption in the arbitrators, or either of them

Question 22

Active Partiality

Answer 22

refers to actions by the arbitrator indicating that they is predisposed in favor or against one of the parties

Question 23

Passive Partiality

Answer 23

circumstances surrounding the arbitrators that may give rise to inferences of partiality, even where there is no demonstration of active partiality, such as an arbitrators relationship with one of the parties

Question 24

Section 10(a)(3)

Answer 24

provides that an arbitral award may be vacated where the arbitrators are guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced

Question 25

Section 10(a)(4)

Answer 25

provides that an arbitral award may be vacated where the arbitrators exceeded their powers, or so imperfectly execute them that a mutual, final, and definite award upon the subject matter submitted was not made.

• Arbitrators exceed their power when they issue an award not presented to them in the submission of the arbitration or when they fail to adhere to other constraining criteria prescribed by the parties

Question 26

Manifest disregard

Answer 26

the claim is that the arbitrators award contradicted clearly controlling law, that the arbitrator knew what the law was and deliberately disregarded it.

Question 27

Arbitration award, public policy

Answer 27

to determine if an arbitration award violates public policy, a court must assess whether the specific terms in the contract violate public policy by creating an explicit conflict with other laws and legal precedents

Question 28

Other non statutory grounds

Answer 28

courts have also vacated arbitration awards that are arbitrary and capricious or are irrational

Question 29

Punitive Damages Awards

Answer 29

Arbitrators routinely award punitive damages even when the agreement of the parties may not expressly authorize them. Some courts have held that arbitrators cannot award punitive damages. Some have held only punitive damages if they are specifically provided for in the parties agreement.

Question 30

Gunboat diplomacy

Answer 30

companies invested in foreign countries and hoped their governments would protect them if they were not treated well

Question 31

BIT

Answer 31

bilateral investment treaty model
BITs were designed to provide for the protection of foreign investment in each country and for treatment that is no different from the experienced by the host country investors

Question 32

Can you go to court and have the resolution enforced?

Answer 32

yes

Question 33

Essence Test

Answer 33

• Bargaining power is usually one sided to the boss
• Unionizing raises the bargaining position of the employees
• Fundamental role of the arbitrator is to interpret the collect bargaining agreement

Question 34

7 elements of the arbitration agreements

Answer 34

Consent, scope of the dispute, institution and rules, seat of arbitration, choice of law, language, method of appointment

Question 35

NY Convention

Answer 35

force the party to arbitrate (null void and inoperable, look at domestic law

Question 36

Enforcement of the award

Answer 36

article 4 of the ny convention

Question 37

annulment of the award

Answer 37

domestic law of the seat

Question 38

severability

Answer 38

judges can sever the arbitration clauses from a contract and force the company w/ more bargaining power to pay