Comments on: ABA Resolution on “Arbitration Fairness Act” http://businessconflictmanagement.com/blog/2009/08/aba-resolution-on-fairness-in-arbitration-act/ Conflict Management Expertise from F. Peter Phillips Thu, 09 Feb 2012 22:17:14 +0000 http://wordpress.org/?v=2.7.1 hourly 1 By: GUEST-POST PART II | Employment Arbitration: Short-Term Value but Long-Term Harm « Disputing http://businessconflictmanagement.com/blog/2009/08/aba-resolution-on-fairness-in-arbitration-act/comment-page-1/#comment-1010 GUEST-POST PART II | Employment Arbitration: Short-Term Value but Long-Term Harm « Disputing Thu, 07 Jan 2010 13:00:56 +0000 http://businessconflictmanagement.com/blog/?p=222#comment-1010 [...] ABA has denounced the proposed legislation, reasoning that “the unintended consequences of arbitration legislation [...] [...] ABA has denounced the proposed legislation, reasoning that “the unintended consequences of arbitration legislation [...]

]]> By: Business Conflict Blog » Arbitrating Employment Disputes: Misusing a Valuable Tool? Part II http://businessconflictmanagement.com/blog/2009/08/aba-resolution-on-fairness-in-arbitration-act/comment-page-1/#comment-715 Business Conflict Blog » Arbitrating Employment Disputes: Misusing a Valuable Tool? Part II Mon, 16 Nov 2009 02:18:26 +0000 http://businessconflictmanagement.com/blog/?p=222#comment-715 [...] As noted previously on this blog, the ABA has denounced the proposed legislation, reasoning that “the unintended consequences of arbitration legislation and regulation could materially alter the established legal landscape for international arbitration with respect to the validity of pre-dispute arbitration agreements in a broad range of cases and to the division of authority between the courts and the arbitrators. These changes will have major ramifications for international commercial arbitration in the U.S. and for U.S. businesses in the global marketplace.”  Yet despite many dismissive shrugs, as my excellent colleague blooger Victoria VanBuren recently pointed out, how many House bills have 99 co-sponsors?  And the Fall 2009 issue of the ABA’s Dispute Resolution Magazine features a prominent article by Jean R. Sternlight titled “Fixing the Mandatory Arbitration Problem: We Need the Arbitration Fairness Actof 2009.” [...] [...] As noted previously on this blog, the ABA has denounced the proposed legislation, reasoning that “the unintended consequences of arbitration legislation and regulation could materially alter the established legal landscape for international arbitration with respect to the validity of pre-dispute arbitration agreements in a broad range of cases and to the division of authority between the courts and the arbitrators. These changes will have major ramifications for international commercial arbitration in the U.S. and for U.S. businesses in the global marketplace.”  Yet despite many dismissive shrugs, as my excellent colleague blooger Victoria VanBuren recently pointed out, how many House bills have 99 co-sponsors?  And the Fall 2009 issue of the ABA’s Dispute Resolution Magazine features a prominent article by Jean R. Sternlight titled “Fixing the Mandatory Arbitration Problem: We Need the Arbitration Fairness Actof 2009.” [...]

]]> By: Zbysek Kordac http://businessconflictmanagement.com/blog/2009/08/aba-resolution-on-fairness-in-arbitration-act/comment-page-1/#comment-390 Zbysek Kordac Mon, 07 Sep 2009 22:20:04 +0000 http://businessconflictmanagement.com/blog/?p=222#comment-390 I agree with the ABA resolution that enactment of the proposed legislation would be big step back. It's harmful effect on international arbitration and international commerce in the US generally would be significant. As regards the intended protection of consumers and employees, I am not convinced that absolute invalidation of pre-dispute arbitration clauses is the only viable method how to deal with the problem. I agree with the ABA resolution that enactment of the proposed legislation would be big step back. It’s harmful effect on international arbitration and international commerce in the US generally would be significant.

As regards the intended protection of consumers and employees, I am not convinced that absolute invalidation of pre-dispute arbitration clauses is the only viable method how to deal with the problem.

]]> By: Joe Markowitz http://businessconflictmanagement.com/blog/2009/08/aba-resolution-on-fairness-in-arbitration-act/comment-page-1/#comment-374 Joe Markowitz Thu, 03 Sep 2009 17:34:38 +0000 http://businessconflictmanagement.com/blog/?p=222#comment-374 I understand the value of arbitration of commercial disputes, particularly in international transactions. But the bill before Congress is primarily addressed to consumer transactions. In consumer cases, you are not talking about sophisticated merchants who rely on commercial tribunals to resolve disputes in a business-like way. You are instead talking about employees or hospital patients, or purchasers of consumer goods or services who sign arbitration clauses that waive valuable rights, before any dispute has arisen and without understanding the rights they are waiving or the costs of arbitration. Those seem to me to be two completely different situations. The ABA is supposed to be concerned with fairness and justice and the protection of people's constitutional rights. The ABA should be supporting the elimination of pre-dispute arbitration agreements in consumer cases, because those agreements cannot be justified by any considerations of fairness or justice. It is almost never advantageous to an employee or a tort victim or a consumer to waive your right to a jury trial in advance of a dispute. If both parties believe that arbitration is a better forum, they can always agree to arbitrate after a dispute arises. But to require consumers to waive their valuable constitutional rights in advance of a dispute cannot be justified except on the grounds of economic efficiency, which should be only a secondary concern of the ABA. I understand the value of arbitration of commercial disputes, particularly in international transactions. But the bill before Congress is primarily addressed to consumer transactions. In consumer cases, you are not talking about sophisticated merchants who rely on commercial tribunals to resolve disputes in a business-like way. You are instead talking about employees or hospital patients, or purchasers of consumer goods or services who sign arbitration clauses that waive valuable rights, before any dispute has arisen and without understanding the rights they are waiving or the costs of arbitration. Those seem to me to be two completely different situations.

The ABA is supposed to be concerned with fairness and justice and the protection of people’s constitutional rights. The ABA should be supporting the elimination of pre-dispute arbitration agreements in consumer cases, because those agreements cannot be justified by any considerations of fairness or justice. It is almost never advantageous to an employee or a tort victim or a consumer to waive your right to a jury trial in advance of a dispute. If both parties believe that arbitration is a better forum, they can always agree to arbitrate after a dispute arises. But to require consumers to waive their valuable constitutional rights in advance of a dispute cannot be justified except on the grounds of economic efficiency, which should be only a secondary concern of the ABA.

]]> By: American Bar Association’s Resolutions on the Arbitration Fairness Act of 2009 « Disputing http://businessconflictmanagement.com/blog/2009/08/aba-resolution-on-fairness-in-arbitration-act/comment-page-1/#comment-361 American Bar Association’s Resolutions on the Arbitration Fairness Act of 2009 « Disputing Wed, 26 Aug 2009 12:01:44 +0000 http://businessconflictmanagement.com/blog/?p=222#comment-361 [...] Read more here. [...] [...] Read more here. [...]

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