Arbitration

Question 1

§ 301 LMRA

Answer 1

Primary source for resolving labor dispute

Question 2

can anyone be an arbitrator?

Answer 2

yes

Question 3

Other two arbitration variations

Answer 3

Administrative/regulatory (federal statutes) and family, public sector (state law)

Question 4

Top 5 private dispute resolution service providers

Answer 4

AAA

JAMS

CPR

FMCS

NAA

Question 5

Three Primary Arbitration Variations

Answer 5

1. Labor management (unions-employer) (National Labor Relations Act)
2. Commercial Setting (business non-union employees, consumers, construction, leases) (FAA and Forced Arbitration Agreements)
3. International Disputes
   (New York Convention)

Question 6

Key Features in Comparison with Litigation

Answer 6

1. Private dispute resolution services
2. Parties select an arbitrator
3. Much less or no discovery, pre-trial practice, dispositive motions and pleadings, summary judgement
4. Relaxed rules of evidence
5. Written opinions in only limited instances
6. Enforcement/deferential review

Question 7

Advantages of Arbitration

Answer 7

Expertise of arbitrator

Speed and Expense

Accessibility

Question 8

Disadvantages ** FINISH

Answer 8

Lack of regulation and credentials of arbitrators

Question 9

Hearing Process

Answer 9

Attorneys may be present

Witnesses

Exhibits admitted into evidence

Transcripts at some proceedings

Post hearing briefs (expensive)

Written awards

Question 10

Which law deals with the enforcement of agreement to arbitrate?

Answer 10

Federal Arbitration Act (FAA) § 2 or NLRA § 301/LMRA § 301

Question 11

Which laws deal with enforcement of Arbitral Awards

Answer 11

FAA § 10

Question 12

Wilko v. Swan (1953)

Answer 12

Supreme Court Decision - Overturned

Facts: Customers of securities brokerage firm was damages under SA §14 - alleged that the firm made a false representation and provided false info. Forced arbitration clause.

Rule: Arbitration clauses can not be enforced because there is a right to a judicial forum that can not be waived.

Question 13

Gilmer v. Interstate/Johnson Lane Corp. 1991

Answer 13

Supreme Court Case - Show a Shift in Judicial Attitudes

Facts: Dispute over ADEA. Employee registered with NYSE to arbitrate, not with his employer. Brings a suit, company wants to compel arbitration.

Rule: When you agree to arbitrate a statutory claim, you are not giving up your substantive rights just procedural rights so they can compel you to arbitrate. General challenges to arbitration are inadequate to deny compelling arbitration.

Question 14

McMahon

Question 15

Rodriguez

Answer 15

Reversal of Wilko in 1989

Question 16

Gardner-Denver

Question 17

Penn Plaza

Answer 17

Justice said it technically did not overrule Garner-Denver but it actually did

Question 18

Rodgers v. Vladeck debate

Question 19

Stempel’s proposal

Question 20

Common grounds for contract revocation

Answer 20

unconscionability, fraud, lack of capacity, duress

Question 21

FAA - section 10

Answer 21

when a judge can vacate an award

Question 22

FAA - 10(a)(1)

Answer 22

the award is procured through corruption, fraud, or undue means

Question 23

FAA - 10(a)(2)

Answer 23

where there was an evident partiality or corruption in the arbitrators

Question 24

FAA - 10(a)(3)

Answer 24

denying a fundamentally fair hearing

ex.
- denied the right to counsel
- was prejudiced by an ex parte hearing
- refusal to grant a subpoena
- refusal to grant a discovery request

Question 25

FAA - 10(a)(4)

Answer 25

when the arbitrators exceed their powers or imperfectly executed them so there is no final/definite award at the end

issue an award on a problem not presented in arbitration

do not adhere to the criteria of the parties

Question 26

separability principal

Answer 26

the arbitration agreement is separate from the content of the contract it’s attached to

Question 27

FAA - section 2

Answer 27

written arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”

Question 28

difference between FAA and service providers (like AAA)

Answer 28

FAA - governs the enforcement of the arbitration agreements and awards

service providers create rules of procedure that arbitrators could use in the hearings

Question 29

what are NOT grounds for vacating an award

Answer 29

errors of law or fact are not grounds for vacating the award

a serious misconstruction of the contract is not grounds for vacating an award

Question 30

Essence test

Answer 30

even if the arbitrator is mistaken in the interpretation of the contract, the award is legitimate as long as it draws on the essence from the collective bargaining agreement

Question 31

Manifest disregard of the law

Answer 31

when an arbitral award contradicts a clearly controlling law, the arbitrator knew what the law was, and clearly disregarded it

Question 32

non statutory grounds for vacating a judgement

Answer 32

manifest disregard, pubic policy, essence test, arbitrary and capricious

Question 33

vacating based on public policy

Answer 33

whether the specific terms of the award violate public policy by creating an explicit conflict with other laws and legal proceedings

Question 34

arbitrary and capricious

Answer 34

the arbitrator’s decision can not be inferred from the facts of the case or no judge could have ever made such a ruling

Question 35

what happens if an award is vacated

Answer 35

you go back to arbitration, sometimes with the same arbitrator and sometimes another one

Question 36

Punitive damages different jurisdictional approaches

Answer 36

• Never authorized
• Only authorized when the parties agreed to it
• Authorized unless the parties have explicitly stated they are not on the table
• Punitive damages sometimes have been reinstated, even when it was against state law