Arbitration Flashcards
What is the makeup of a typical arbitrator?
Subject matter expertise in dispute, older, white, male
What are private dispute organizations?
organizations that will help connect arbitrators with potential clients, space in which to hold their arbitrations, rules
for conducting their arbitrations, as well as billing services for collecting their fees. Arbitrators are selected to serve on the organizations roster/list of available arbitrators
What is the oldest arbitration organization
The AAA- American Arbitration Association
How is an arbitrator chosen?
The parties choose them
How are the rules of evidence in arbitration?
They are very relaxed and may not even apply
Do arbitrators need to give written opinions?
No, only in limited circumstances when arbitration is a substitute for the law
How do courts review decisions by arbitrators?
They view them very deferentially and will almost always say they are enforceable
Advantages or disadvantages of arbitration?
1. Expertise of selected arbitrators?
2. Speed and expense
3. Accessibility
4. Regulation/credentialing of arbitrators?
5. Regulation/credentialing of arbitral organizations?
6. Transparency regarding arbitration decisions,
practices? (incentives/ethics?)
- A
- A
- A
- D
- D
- D
Are there written transcripts and post-hearing briefs in Arbitration?
If the parties request it
What are some similar things that make arbitration look like a trial?
Attorneys may represent clients, witnesses are sworn, evidence is presented, witnesses are cross examined, written awards
What does the FAA section 10 state?
allows a court to vacate an award where there was corruption or a misconduct, partiality, or an arbitrator exceeded the scope of his/her authority, but these basis for challenges are very narrow because courts want to enforce these awards that parties agreed to
What does the FAA section 2 state in summary?
Section 2 ensures that written agreements to arbitrate disputes are valid and enforceable in the same way as other contracts, except in cases where such agreements are deemed unenforceable by law (e.g., if they are found to be unconscionable or void due to fraud).
Scope of Applicability: It applies to contracts involving interstate commerce or maritime transactions, which means the FAA can be invoked in a wide variety of contractual relationships that cross state or national boundaries.
What was the main takeaway from Wilko v. Swan?
a statute could invalidate arbitration agreements in securities contracts, even if those contracts included an arbitration clause.
What is the main takeaway from Gilmer v. Interstate Johnson Lane Corp?
H]aving made the bargain to arbitrate, the party
should be held to it unless Congress itself has said that statute clarifies that its disputes are not subject to arbitration. Federal policy now favors arbitration
What was the holding in Gilmer?
Gilmer failed to meet his burden to show
that Congress, in enacting the ADEA, intended to
preclude arbitration of [ADEA] claims under the
[FAA] .
What is the Pyett clause?
The Pyett clause refers to a specific type of arbitration agreement included in collective bargaining agreements (CBAs), named after the 14 Penn Plaza LLC v. Pyett decision. It is a clause in a union contract that requires employees to arbitrate certain disputes, including discrimination claims, rather than pursuing them through the courts
What is the main takeaway from Rogers v. Vladeck?
The main takeaway from Rogers v. Vladeck is that arbitration agreements can be enforceable in employment disputes, even when they involve claims like those under the FLSA, as long as the agreement is valid and the parties have agreed to arbitrate.
What is Stempel’s proposal?
Stempel has proposed that courts should engage in full judicial review of arbitration agreements, particularly those that are newly introduced or part of mandatory employment contracts. This would include ensuring that arbitration clauses are fair, transparent, and understood by employees, especially in situations where one party (usually the employer) has more bargaining power than the other.
What did EFASASHA do?
It amended the FAA to end forced arbitration of statutory federal
employment discrimination claims based upon sexual
assault and sexual harassment
What is mass arbitration?
It is where plaintiffs’ firms file arbitration demands
on behalf of individual claimants subject to mandatory
arbitration agreements that prohibit class actions
The FAA can stay proceedings and compel the parties to arbitrate if ______ and _______
a valid written agreement to arbitrate exists
dispute falls within the scope of the agreement
What is the seperability doctrine?
a legal principle in arbitration that states that arbitration provisions are separate from the rest of a contract, so they can still be found enforceable even if the rest of the contract is found to be invalid
What are the five defenses to arbitration?
Unconsciounability
Duress
mistake
lack of capacity
fraud
What are the procedural unconscious defenses to arbitration?
1) Oppression through unequal bargaining positions
2) surprise through hidden terms common in adhesion contracts drafted by the party of superior bargaining strength
