Arbitration Flashcards
§ 301 LMRA
Primary source for resolving labor dispute
can anyone be an arbitrator?
yes
Other two arbitration variations
Administrative/regulatory (federal statutes) and family, public sector (state law)
Top 5 private dispute resolution service providers
AAA
JAMS
CPR
FMCS
NAA
Three Primary Arbitration Variations
- Labor management (unions-employer) (National Labor Relations Act)
- Commercial Setting (business non-union employees, consumers, construction, leases) (FAA and Forced Arbitration Agreements)
- International Disputes
(New York Convention)
Key Features in Comparison with Litigation
- Private dispute resolution services
- Parties select an arbitrator
- Much less or no discovery, pre-trial practice, dispositive motions and pleadings, summary judgement
- Relaxed rules of evidence
- Written opinions in only limited instances
- Enforcement/deferential review
Advantages of Arbitration
Expertise of arbitrator
Speed and Expense
Accessibility
Disadvantages ** FINISH
Lack of regulation and credentials of arbitrators
Hearing Process
Attorneys may be present
Witnesses
Exhibits admitted into evidence
Transcripts at some proceedings
Post hearing briefs (expensive)
Written awards
Which law deals with the enforcement of agreement to arbitrate?
Federal Arbitration Act (FAA) § 2 or NLRA § 301/LMRA § 301
Which laws deal with enforcement of Arbitral Awards
FAA § 10
Wilko v. Swan (1953)
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.
Gilmer v. Interstate/Johnson Lane Corp. 1991
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.
McMahon
arbitrator mistrust in 1953 but not 1987
Rodriguez
Reversal of Wilko in 1989
Gardner-Denver
you can pursue remedies under title 7 and arbitration - was overturned
Penn Plaza
Justice said it technically did not overrule Garner-Denver but it actually did
Rodgers v. Vladeck debate
Point/Counterpoint on
value of arbitration for employment discrimination
statutory claims. Pages 19-20.
Stempel’s proposal
full judicial review for new
arbitration for fairness with consumers/employees
Common grounds for contract revocation
unconscionability, fraud, lack of capacity, duress
FAA - section 10
when a judge can vacate an award
FAA - 10(a)(1)
the award is procured through corruption, fraud, or undue means
FAA - 10(a)(2)
where there was an evident partiality or corruption in the arbitrators
FAA - 10(a)(3)
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
FAA - 10(a)(4)
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
separability principal
the arbitration agreement is separate from the content of the contract it’s attached to
FAA - section 2
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”
difference between FAA and service providers (like AAA)
FAA - governs the enforcement of the arbitration agreements and awards
service providers create rules of procedure that arbitrators could use in the hearings
what are NOT grounds for vacating an award
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
Essence test
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
Manifest disregard of the law
when an arbitral award contradicts a clearly controlling law, the arbitrator knew what the law was, and clearly disregarded it
non statutory grounds for vacating a judgement
manifest disregard, pubic policy, essence test, arbitrary and capricious
vacating based on public policy
whether the specific terms of the award violate public policy by creating an explicit conflict with other laws and legal proceedings
arbitrary and capricious
the arbitrator’s decision can not be inferred from the facts of the case or no judge could have ever made such a ruling
what happens if an award is vacated
you go back to arbitration, sometimes with the same arbitrator and sometimes another one
Punitive damages different jurisdictional approaches
- 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
